> 103, 84 6% JUDGMENT No. wc ccescececsseeal sososoen CATCHWORDS Administrative Law - Judicial Review - Decision c! Feéeral Police Disciplinary Tribunal - Charges of "improper conduct" - Admission of fresh evidence - Character of disciplinary proceedings - Whether "1mproper conduct" includes conduct constituting a criminal offence -~- Institution of proceedings - Construction cf notices - Whether bad for duplicity - Standard of proof. Administrative Law - Appeal from Tribunal - Related proceedings - Admission of fresh evidence - Whether appellant charced "as soon as practicable". Administrative Decisions (Judicial Review) Act 1977, s. 5 Complaints (Australian Federal Folice) Act 1981, ss. il, 67(2), 72, 76(5), 78, 79. Crimes Act 1914, s. 5 £ Australian Federal Police (Discipline) Regulations, regs. 18, 19 Hardcastle v. The Commissioner cf Poiice Hardcastle v. The Commissioner of tne Australian Federal Police & Tne Federal Police Disciplinary Tribunal A.C.T. G84 of 1982 A.C.T. G74 of 1983 Bowen C.J., Gallop and tockkhart dd. 13 April 1984 Canberra IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. A,C.T. G84 of 1982 ) ) ) GENERAL DIVISION ON APPEAL FROM THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: PETER GOHN HARDCASTLE Applicant AND: THE COMMISSIONER OF POLICE Respondent IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. A.C.T. G74 of 1983 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF TEE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER JOEN HARDCASTLE Appellant AND: THE COMMISSIONER OF THE AUSTRALIAN FEDEPAL POLICE First Respondent THE FEDERAL POLICE CISCIPLINARY TRISUNAL Second Respondent CRDER CUDGES MAKING ORDER: Bewen C.Jd., Gallop and Lockhart JJ. DATE CF ORDER. 13. Arril 1964 WHERE MADE Canberra THE COURT ORDERS TAT. 1. The appeals be distissed. 2. Peter John Hardcastle pay to the Commissioner cf The Australian Federal Police his czsts of tne appeals. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. A.C.T. G84 of 1982 DISTRICT REGISTRY were wer rw GENERAL DIVISION ON APPEAL FROM THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN : PETER JOHN HARDCASTLE Applicant AND: THE COMMISSIONER OF POLICE Respondent IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. A.C.T. G 74 of 1983 ) ) ) GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : PETER COHN HARKDCASTLE Appellant AND: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE First Respondent THE FEDERAL POLICE DISCIPLINARY TRIBUNAL Second Respondent CORAM: Bowen C J., Gallop and Lockhart JJ. DATE: 13 Aprii 1984 REASONS FOR JUDGMENT THE COURT These are two appeals which, although heard consecutively rather than together, involve substantially the same facts and raise issues of law common to both appeals. Hence it 1s convenient to consider them together. The appellant is a member of the Australian Federal Police. On 17 November 1982 the Federal Police Disciplinary Tribunal, established under the Complaints (Australian Federal Police) Act 1981 (the "Complaints Act"), constituted by Mr. J.R B. Norris Q.C., decided that John Gerrard Allan, a Senior Constable in the Australian Federal Police, was guilty of six disciplinary offences each consisting of improper conduct in his official capacity: para. 18(1)(d) of the Australian Federal Police (Discipline) Regulations (the "Discipline Regulations"). Particulars of the improper conduct were that Senior Constable Allan on or about 22 November 1980 - (a) at Garema Place, Canberra assaulted Christopher Michael Clarke; (b) whilst in amotor vehicle registered number ZZA-220 travelling between East Row and the City Police Station, Canberra assaulted John Gordon Morris; Cc) at the City Police Station, Canberra assaulted Simon Frederick Dalton; (dad) at the City Police Station, Canberra assaulted John Gordon Morris; (4) at the Tity Police Station, Canberra assaulted Craig John Tigwell; and (ft) at the City Police Station, Canberra assaulted Simon Mark Griffiths. The appellant was found guilty of "five breaches of discipline namely, that he was guilty of improper conduct in his official capacity in that he wags knowingly concerned in the commission by Senior Constable Allan of each of the breaches of discipline referred to in paras. (a) to (e) inclusive above: para. 18(1)(d) and sub-reg. 18(2) of the Discipline Requlations. The Tribunal held that in respect of all charges the civil onus of proof applied. The Tribunal said that the questions which 1t had to decide turned essentially on the credibility of the witnesses who gave evidence before it. The Tribunal accepted the evidence of the young men who gave evidence an respect of allegations which they made against the police officers concerned namely, Senior Constabie Alian and the appellant. The Tribunal did not accept the evidence of Senior Constable Alian and the appellant. The Tribunal found Senior Constable Allan and the appellant quilty of the breaches of discipline alleged against them and remitted 'the proceedings to the Commissioner of Police for the imposition of the appropriate penalties. It 18s from this decision of the Tribunal that appeal No. G 86 of 1982 has been brought by the appellant to this Court. The appeal must be heard by the Court constituted as a Full Court: sub-s. 79(3) of the Complaints Act. Some time after the Trinpunai's decisicn was made the appellant applied to this Court under tne Administrative becisions 'dJudiciral Review) Act 1977 (the 'Judicial Review Act") 4. for an order of review of the Tribunal's decision. It is convenient to consider first this last mentioned appeal (No. G 74 of 1983). Central to the argument of the appellant is reg.18 of the Discipline Requlations which provides: "18(1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member - (a) contravenes or fails to comply with a provision of Division 1; (bd) contravenes or fails to comply with a General Order or a General Instruction issued under section 14 of the Act; (c) is negligent or careless in the discharge of his duties; (d) igs guilty of disgraceful or improper conduct, either in his official capacity or otherwise; Ce) acts ina disorderly manner or ina manner unbecoming a member of the Australian Federal Police; (f) acts ina manner that 1s prejudicial to the good order and discipline of the Australian Federal Police; (g) acts in a manner that brings, or 1s likely to bring, discredit to the reputation of the Australian Federal Police; or (h) is found guilty by a court of an offence against a law of the Commcnwealth, a State, a Territory or another country. (2) A member who aids, abets, counsels, procures, or by act or omission is directly or indirectly knowingly concerned in, or party to, the commission of any disciplinary offence shall be deemed to be guilty of that disciplinary offence and is punishable accordingly." Counsel for the appellant sought the leave of the Court to adduce fresh evidence on the hearing of tnis appeal namely, an affidavit by Davzd Bruce Nichols sworn 21 March 1984. Counsel unformed the Court that Mr. Nichols' evidence related o the ct availability of a Deputy Chairman of the Disciplinary Board, the predecessor of the Tribunal, to hear a charge brought by the Commissioner against the appellant and referred to the Disciplinary Board in 1982, and that this evidence was relevant in support of grounds 18 and 20 in the notice of appeal. Those grounds of appeal read as follows: "18. That the Learned Presiding Judge erred in law in deciding that a failure to inform the Appellant of the decision not to hear the proceedings referred to the Disciplinary Board by the Commissioner's reference of the 26 January 1982 did not amount to A DENIAL OF NATURAL JUSTICE TO THE APPELLANT. 20. That the Learned Presiding Judge erred in law in not holding that the failure to notify the Appellant of the decision not to hear the charges referred to the Disciplinary Board by the Commissioner's reference of the 26 January 1982 and the decision not to hear the said charges by the said Disciplinary Board WAS AN ABDICATION REJECTION AND REFUSAL TO EXERCISE JURISDICTION conferred on the said Disciplinary Board by the said reference of the 26 JANUARY 1982." We refused the application and said that we would give our reasons later. It was not established to our satisfaction that the evidence of Mr. Nichols was relevant to the matters referred to 1n grounds 18 and 20. Even if we had been satisfied that his evidence was relevant we would still have declined to receive 1t om discretionary grounds. No evidence was adduced in support of the application to receive this fresh evidence. No satisfactory explanation was given to us for the appellant not having called Mr. Nichols before the learned primary Judge. For these reasons we refused the application. The primary argument of counsel for the appellant concerned the construction of para. 18(1){(d) of the Discipline Regulations. Counsel submitted thar the Tribunal lacked jJurisaiction to hear the appeal because, upon the proper Me 6. construction of the Discipline Regulations, para. 18(1)(d) does not encompass conduct which, if proved, constitutes a criminai offence. Two matters were relied on to support this construction. First, it was submitted that in respect of criminal conduct a member of the Australian Federal Police is entitled to be tried before a tribunal which applies the criminal onus of proof namely, proof beyond reasonable doubt and, where the conduct is serious, he 1s entitled to trial by jury. Second, it was asserted that the institution of proceedings in relation to a disciplinary offence, where the conduct relied on amounts to the commission of a criminal offence, exposes the member of the Police Force to double jeopardy. Whatever the result of the disciplinary proceedings they would not bar the institution of subsequent criminal proceedings in respect of the same conduct. It was submitted that para. 18(1)¢d) should therefore be so construed as to remove the possibility of the occurrence of double jeopardy. Counsel relied on an article "Double Jeopardy and Police Disciplinary Proceedings" by Alan E. Greaves (Inspector, West Yorkshire Metropolitan Police) 1983 Crim. L.R. Z1i wnich discussed the principle of double jeopardy in relation to the Police Acts 1964 and 1976 of the United Kingdom. In our opinion there 1s no substance in this sunomission. Tt misconceives the character of disciplinary proceedings in general and under the Discipline Requlations in varticular. The object of disciplinary proceedings under the Discipline Regulations 1s to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish (see Harvey v. Law Society of New South Wales (1975) 49 A.L.J.R. 362 per Barwick C.J. at p. 364) or to exact retribution" (see Ex parte Attorney-General (Cth); re a_ Barrister and Solicitor (1972) 20 F.L.R. 234 per Fox, Blackburn and Woodward J.J. at p. 244). The expression "disgraceful or improper conduct" 18 of wide import; sometimes it will and, at other times will not, encompass conduct which is also criminal conduct. We see no warrant for construing the words of para. 18(1)(d) otherwise than according to their ordinary and natural meaning, a construction which 1s consonant with the evident purpose of the paragraph wnen considered in the context of the Discipline Requlations as a whole. There is no room for the application of what 1s sometimes misleadingly called the principle of double jeopardy in this case. If the appeilant were charged with, and convicted of, the same unlawful assaults as are the subject of the disciplinary offences he would not face double jeopardy or be punished twice for the same offence. He would be convicted of an offence against the criminal iaw and be guilty of a breach of the discipiinary code of the Australian Federal Police. The two proceedings are essentially different in character and resuit. The article "Double Jecpardy and Police Disciplinary Preceedings" does not assist the submission made on behalf of the appellant because the relevant provisions of the legislation there being corsidered are not comparable to the relevant ®. provisions of the Complaints Act and the Discipline Reagulations. The next submissicn or counsel for the arpellant 8. concerns the construction and operation of certain notices signed by the Commissioner of Police under sub-reg.19(1) of the Discipline Reguiations, the service of which institutes disciplinary proceedings against the member concerned. It 1s necessary first to state certain facts to understand the submission. On 8 January 1982 the Commissioner signed two notices under sub-reg. 19(1), one addressed to the appellant and the other to Senior Constable Allan, which stated that disciplinary proceedings were thereby instituted. Nothing turns on the form or service of those notices for present purposes; they were not proceeded with. On 31 May 1982 the Commissioner signed two further notices pursuant to sgub-reg. 19(1), one addressed to the appellant and the other to Senzor Constable Allan. The notice to the appellant, so far as presently relevant, reads as follows:- "WHEREAS at Canberra in the Australian Capital Territory on 22 November 1980, John Gerrard ALLAN, a member of the Australian Federal Police, was guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations namely, improper conduct ain his official capacity in that he did at divers places in the Australian Capital Territory, unlawfully ageault Craia Jchn TIGWELL, John Gordon MORRIS, Christopher Michael CLARKE, Simon Frederick DALTON and Simon Mark GRIFFITHS; AND WHEREAS it appears to me that you, Peter John HARDCASTLE by virtue of the provisions of sub-requlation 18(2) of the Australian Federal Police (Discipline) Regulations, may have committed a disciplinary offence specified in para. 18(1)(d) of those Regulat:ons namely, 1mproper conduct in your official capacity; TAKE NOTICE that I, Colin Philip Joseph W Commissaioner of Police of the Austraiian Feder hereby institute proceedings against you, th John HARDCASTLE in relation to that offence. THE nature and particulars of the alleged disciplinary offence are as follows: That you, the said Peter John HARDCASTLE, by act and omission were directly knowingly concerned in the commission of the said disciplinary offence by the said John Gerrard ALLAN ..." The appellant was served with the notice on 9 June 1982. Subsequently the Commissioner referred both proceedings (that is the proceedings in respect of the appellant and Senior Constable Allan) to the Tribunal pursuant to gub-s. 67(2) of the Complaints Act. In July 1982 Michael Henry Peedom, who at the relevant time was the Assistant Deputy Crown Solicitor (A.C.T.) and had the conduct of the disciplinary proceedings against the appellant and Senior Constable Allan, telephoned Mr. Wilcox of Messrs. Snedden Hall and Gallop who were the solicitors for the applicants and told him that he considered that the notices of 31 May 1982 should be amended so that each separate alleged assault would be the subject of a separate disciplinary charge. Mr. Wilcox said that he had no objection to that course. Mr. Peedom then told Mr. Wilcox that he would arrange for the amended notices to be served on each applicant. Mr. Wilcox replied: "Don't worry about that. You can leave them here with me." On 2 mm July 1982 the proceedings came before the Tribunal for adirections hearing. The appellant and Senior Constable Allan were informed of the directions hearing and were advised by their solicitor that it was not necessary for them to attend. They did not attend. Prior to the directions hearing discussions took place between Mr. Peedom and Mr. Wilcox which resulted in 10. agreement being reached as to the directions which the Tribunal should be asked to give. At the directions hearing Mr. Peedom appeared for the Commissioner; the appellant and Senior Constable Allan were represented by Mr. R. Faulks of Messrs. Snedden, Hall & Gallop. Directions were given substantially in the form agreed between Mr. Peedom and Mr. Wilcox. The directions given in the proceeding against the appellant were as follows:- "1. Notices under Regulation 19(1) of the Austraiian Federal Police (Discipline) Regulations to be served by the Commissioner of Police upon the member's solicitors within 7 days. 2. Any request for. further and better particulars of the alleged disciplinary offences to be served upon the Deputy Crown Solicitor's Office within 14 days. 3. Answers to any request for further and better particulars to be served upon the member's solicitors within 21 days. 4. The member to notify the Deputy Crown Solicitor within 21 days whether he admits the truth of the matters alleged to constitute the disciplinary offences. S. The alleged disciplinary offences to be heard jointly with charges involving Detective Senior Constable John Gerrard Allan. 6. The matter to be heard on Wednesday 1 September 1982. 7. Either party to have liberty to apply to the Tribunal for the making of further directions." Similar directions were given in the proceeding in respect of Senior Constable Allan. On 31 July 1982 the Commissioner signed ter documents, five addressed to the appellant and five addressed to Senior Constable Allan. One of the documents addressed to the appellant li. reads as follows:- NOTIFICATION OF THE INSTITUTION OF PROCEEDINGS IN PURSUANCE OF REGULATION 19 OF THE AUSTRALIAN FEDERAL POLICE (DISCIPLINE) REGULATIONS NOTICE to: DETECTIVE SENIOR CONSTABLE PETER JOHN HARDCASTLE - NUMBER 613 WHEREAS it appears to me that you, Peter John HARDCASTLE, by virtue of the provisions of sub-regulation 18(2) of the Australian Federal Police (Discipline) Regulations, may have committed a disciplinary offence specified in paragraph 18(1)(d) of those Regulations namely, improper contact (sic) in your official capacity; TAKE NOTICE that I, Colin Philip Joseph WOODS, the Commissioner of Police of the Australian Federal Police, hereby institute proceedings against you, the said Peter John HARDCASTLE, in relation to that disciplinary offence. THE nature and particulars of the alleged disciplinary offence are as follows: That you, the said Peter John HARDCASTLE, were guilty of improper conduct in your official capcity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about the 22nd day of November 1980, at Garema Place, Canberra in the Australian Capital Territory, you were knowingly concerned in the commission of a disciplinary offence by John Gerrard ALLAN, a member of the Australian Federal Police, in that the said John Gerrard ALLAN was guilty of impreper conduct in his official capacity, contrary to pragraph 18:11)(d) of the said Pequlations in that on or about the 22nd day of November 1980, at Garema Place, Canberra in the said Territory. he did assault Christopher Michael CLARKE. YOU may, no later than 18 August 1982, deliver to the Commissioner - 'a) any written statement that you may wish to make in ¥ you J . relation to the alleged discipi:nary offence; and (b*' any written statement made py arother rerson thac you may wish to tender in support of your own statement. YOU are hereby informed that you are entitled to appear at the hearing of the proceedings and, in the case of Proceedings before the Federal Police Disciplinary Tribunal, you may appear in perscn or may be represented 12. by a legal practitioner or by some other person." The other notices addressed to the appellant were in similar terms except as to 'the particulars of the alleged disciplinary offences. The five notices addressed to Senior Constable Allan differed from those addressed to the appeilant only in that they alleged that Senior Constable Allan was guilty of improper conduct in his official capacity contrary to the provisions of para. 18(1)(d) of the Discipline Regulations. The ten notices were served upon Mr. Wilcox on 2 August 1982 in accordance with the directions given by the Tribunal. The original of each notice was delivered to the Registrar of the Tribunal on the same day. On 3 August 1982 Messrs. Snedden, Hall & Gallop wrote to the appellant as follows:- "We attended the directions hearing before Mr. Norris Q.C. who will be the Tribunal hearing the charges in this matter. Orders were made by consent that charges in the form that will finally proceed to a hearing be served upon us within seven days (we received them yesterday) and that within fourteen days we appiy to the Deputy Crown Solicitor for further particulars of the charges. The hearing will take place on the first of September. Would you please make an appor:ntmert to call at office within seven days of receipt of this letter so that we can prepare our request for further particulars." The evidence does not establish that a similar letter was sent to Senior Constable Allar, put he was informed either by Mr. Wilcox or the appellant that at the directions hearing the aate for the nearing of the discipiinary charges against him had 13. been fixed as 1 September 1982. The Tribunal heard the charges against the appellant and Senior Constable Allan and on 17 November 1982 gave its reasons for decision. The Tribunal found the appellant and Senior Constable Allan guilty of the charges alleged against them and identified the charges by reference to exhibits. It is common ground that those exhibits were the documents dated 31 July 1982. Counsel for the appellant submitted that the 31 July notices were the relevant notices founding the proceedings against the appellant and Senior Constable Allan and heard by the Tribunal. In support of this submission counsel relied on the form of the notices themselves, the fact that they were signed by the Commissioner of Police and served. He submitted that the 31 July notices were fundamentally defective in the following respects:- w They were not served upon the appellant personally. Ww They omitted to state the matters mentioned in para. 19(2)(c) of the Discipline Regulations, a provision which was said to be mandatory not directory. The primary Judge said that the disciplinary proceedings were effectively instituted by the service on the appellant and Senior Constable Allan of the notices of 31 May 1982. His Honour said that what was done at the directions hearing and pursuant to the directions then given by the Tribunal was done in the course of the proceedings instituted by the 31 May notices. As to the 14. 31 July notices in relation to the appellant his Honour said: "The effect of what was done Cby the 31 July notices] was not to alter the subject matter of the charges against the applicants or to introduce any new subject matter but to provide greater particularity of the conduct alleged against them by identifying, in relation to each of the persons alleged to have been assaulted, the place where the offending conduct was said to have taken place and by making plain that, in relation to John Gordon Morris, two separate incidents were alleged. In relation to Detective Senior Constable Hardcastle the effect of the notices dated 31 July 1982 was that the allegation that he was knowingly concerned in the assault by Senior Constable Allan on Simon Mark Griffiths was not maintained. It is true that the notices were headed in such a way as to indicate that they were notifications of the unstitution of proceedings in pursuance of regulation 19 of the Australian Federal Police (Discipline) Regulations but the fact that they were so described and followed the general form of such notifications cannot affect the substance of the matter, namely that they were a re-statement in amended form of what had been alleged, and understood by the applicants to have been alleged, in the notices dated 8 January 1982 and 31 May 1982." His Honour said later: "The disciplinary proceedings were effectively unstituted by the service on the applicants of the notices dated 31 May 1982. What was done at the directions hearing and in pursuance of the directions then given by the Tribunal was done in the course of the proceedings so instituted. In this regard it is important to bear in mind the nature of the Tribunal and the statutory provisions governing its procedures. The general powers of the Tribunal are set out in section 71 of the Complaints (Augtralian Federal Poiice) Act 1981. The procedures to be followed in the proceeding nefore the Tribunal are, subject to the Act and to the Regulations, within the discretion of the Tribural and such a proceeding is to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matter before the Tribunai permit (section 76). Section 72 provides:- "(1) At any stage in a proceeding before the Disciplinary Tribunal, the Tribunal may. on such terms as are just, make such amerdnent as 1t thinks necessary tc correct any aefect or error in the proceedings. (2) All necessary arendments shall be made for the purpose of determining the real questrons in controversy or otherwise depending on the 15. proceeding.' There was ample authority for the Tribunal to take the course 1t did and to proceed with the hearing of the disciplinary offences in their amended form." We agree with these findings of Neaves J. It follows that the 31 July documents must be treated as amendments to the 31 May notices and therefore a re-statement in amended form of the charges brought against the appellant by those notices. Counsel for the appellant then submitted that, on the assumption that the relevant notice was that of 31 May 1982 as amended by the document of 31 July, the notice as s0 amended was bad for duplicity in that it alleged 1n the one charge that he was guilty of unlawful conduct pursuant to para.18(1)(d) and of being directly knowingly concerned in unlawful assaults on five persons (para.18(2)). In our opinion this submission should be rejected. Inherent in the submission igs the assumption that the principles relating to informations being bad for duplicity - principles which have evolved in relation to the criminal law - apply to disciplinary offences under req. 18 of the Discipline Regulations. The correctness of this assumption 1S open to question: see R. v. White; Ex parte Byrnes (1953) 109 C.L.R. 665 at p. 670 and Wright v. Mooney £19663 V.R. 225 per Winneke C.J. at p. 228. But we do not find it necessary to decide the question because in our view the notice does not suffer from 16. duplicity. It alleged a single disciplinary offence namely improper conduct of the appellant in his official capacity. It 13 a disciplinary offence for a member of the Australian Federal Police to be guilty of improper conduct: para. 18((1)(d). Another person may be guilty of being directly knowingly concerned in the commission of that disciplinary offence and in those circumstances is "deemed to be guilty of that disciplinary offence" and is punishable accordingly: sub-reg. 18(2). The purpose of sub-regulation 18(2), like s. 5 of the Crimes Act 1914 (Cth), 18 to make it possible for a person to be guilty ofa disciplinary offence under a provision of sub-reg. 18(1) notwithstanding that he has not in fact done those things prohibited by that sub-regulation provided he aids, abets, counsels, procures or by act or omission is directly or indirectly knowingly concerned in or party to the commission of the prohibited acts. The 31 May notice operates consistently with this approach and does not suffer from duplicity. Counsel for the appellant then submitted that the Tribunal's decision involved an error of law in that it failed to apply the proper standard of proof. Counsel conceded that the standard of proof in the hearing by the Tribunal of disciplinary charges under reg. 18 is to be measured by the oft cited passage from the judgment of Dixon J., as he then was, in Briginshaw v. Briqinshaw (1938) 60 C.L.R. 336 at pp. 361-362: "Except upon criminal issues to be proved by the prosecution, i1t is enough that the affirmative of an allegation 183 made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mand that is attained or estabiished independently of the nature and consequence of the fact 17. or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an oécurrence of a given description, or the gravity of the consequences flowing froma particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal". It was submitted, as we understand it, that the Tribunal did not pay regard to the gravity of the consequences flowing from its findings. Counsel was unable to point to any particular finding which demonstrated the alleged failure of the Tribunal to properly apply the test in Briginshaw v. Briginshaw. The submission finally rested on the proposition that, by not citing chapter and verse of the relevant part of Dixon d.''s judgment, the Tribunal must have overlooked it. The submission 15 untenable. The Tribunal said: "Onus in respect of all these charges is the civil onus of proof, that is, on the balance of probabilities, bearing in mind however the gravity of the charges against the officers concerned (Scanes v. Wilson 22 F.L.R. 262 at 268 and 269). In all the circumstances, I am satisfied, having regard to that onus, that the charges against both officers have been substantiated." The very reference by the Tribunal to Scanes v. Wiison at p. 269 123 to, amongst other things, the whole of the relevant passage from Dixon J.'s judgment in Briginshaw v. Briginshaw including the reference to the gravity of the consequences flowing from a particular finding. We reject the submission. Counsel for the appellant next submitted that the Tribunal''s decision should be set aside on the grourd that 1t failed to comply with the requirements of sub-s. 76(5) of the Complaints Act by not including in its reasons "its findings on 18. material questions of fact anda reference to the evidence or other material on which those findings are based." It is true that the Tribunal's reasons for its decision were not lengthy, doubtless because the Tribunal regarded the result of the proceedings as turning essentially on the credibility of witnesses before it. But we are satisfied that the Tribunal did not fail to comply with the provisions of sub-s. 76(5). In the result we would dismiss appeal No. G 74 of 1983. We turn to appeal No. 84 of 1982 being an appeal from the decision of the Tribunal to this Court constituted as a Full Court. Counsel for the appellant sought leave tc amend the notice of appeal by adding ground 5 raising the question whether para. 18(1)(d) of the Discipline Regulations encompasses conduct which, 1f proved, constitutes the commission of a criminal offence. We heard argument from counsel for both parties on the application for leave to amend and, in the course of developing that argument, allowed counsel to argue the substance of the question. The application was opposed by counsel for the respondent. We reserved our decision on the question because the game question arose in appeal No. 74 of 1983 under the Judicial Review Act where it plainly may be raised; and there 15 some doubt whether 1t can be raised in appeal No. 84 of 1982 from the Tribunal's decision. We express no view on whether the point can be raised in apvoeal No. 84 of 1982; because we rejected the argument of the appellant in appeal No. 74 of 1983, the fate of 19. the point in appeal No. 84 of 1982 18 academic. We think the proper course 1s to refuse leave to the appellant to amend the notice of appeal by adding this fresh ground of appeal. Counsel for the appellant then sought leave to adduce fresh evidence in the hearing of the appeal by reading affidavits from three deponents: Christopher John Lathbury, an acting inspector of the Australian Federal Police, Julian Christopher Oakley and Donald Abercrombie Smyth. We were informed by counsel for the appellant that Mr. Lathbury's evidence was directed to the question of the nature and extent of the injuries received by the five young men the subject of the alleged assaults. Mr. Oakley's evidence dealt with instructions received by him froma Sergeant Kemp, a police officer presently in Brisbane, whose instructions went to the same question as did Mr. Lathbury's evidence. Dr. Smyth is the Commonwealth Medical Officer whose affidavit also touched the same question. The application was opposed by counsel for the respondent. No evidence was adduced in support of the application and nothing was said 1n argument by counsel for the appellant which satisfies us that any discretion vested in this Court should be exercised in favour cf the reception of the evidence. Indeed, we are satisfied that any such discretion should be exercised against its reception. The appeal to this Court from the decision of the Tribunal lies Pursuant to 3. 79 of the Complaints Act on a question of law only. A reference to a question of law includes a reference to the question whether there was sufficient evidence to justify a finding of fact py the Tribunal: 5.78. This appeal comes before cne Court in the exercise of ats original, not its appellate, 20. jurisdiction so that 3.27 of the Federal Court of Australia Act 1s not available as a source of power to receive fresh evidence. There is a real question whether the Court can receive fresh evidence in the present circumstances notwithstanding the provisions of sub-s.79(5) of the Complaints Act. We do not find it necessary to decide whether the Court has power to receive this fresh evidence because any power vested in the Court would be exercised against the reception of the evidence which the appellant sought to adduce. It is for these reasons that we refused leave to the appellant to call fresh evidence. Counsel for the appellant argued that the Tribunal was not empowered to hear the charge against the appellant because a condition precedent to its right to exercise that power had not been satisfied. Reliance was placed by counsel upon s. 11 of the Complaints Act which so far as relevant provides: "11¢1) As soon as practicable after the Commissioner receives a report of the results of the investigation, or further investigation, of a complaint by the Investigation Division --. the Commissioner shall consider the report... and... shall consider whether, in his opinion, any action should be taken by way of charging a member or members." Counsel for the appellant submitted that, as the relevant events grounding the charges occurred on 22 November 1980 and statements were obtained from the young men involved shortly thereafter, the delay between then and the signing by the Commissioner of the first of the notices to institute the proceedings against the appellant (the notice of 8 January 1982) was so great that it could not answer the description of "as soon 21. as practicable" for the purposes of sub-s. 11(1). The argument may be briefly disposed of. We leave aside the question whether the proceedings in this case were instituted following the receipt by the Commissioner of a report of the results of the investigation or further investigation of a complaint by the Investigation Division and whether compliance with the provisions of s.ll is necessary for the institution by the Commissioner of disciplinary proceedings of the kind instituted 1n the present case. There is no evidence to support the conclusion that the report (if any) which may have been received by the Commissioner under sub-s.1l1(1) was not acted upon by him in the sense contemplated by the sub-section i.e. as soon as practicable after he received the relevant report. Other arguments were presented by counsel for the appellant in support of appeal No. G84 of 1982; but they were argued also in appeal No. 74 of 1983 and have been considered by us in relation to that appeal. We would dismiss appeal No. G84 of 1982 with costs. In our opinion both appeals should be dismissed with costs. | certify that this and the 20 preceding pages are a true copy of the reasons for judgment herein of the Court 47. ; My Pott ety Yi Ue [eb WH Associate Dated 13 April 64.