CATCHWORDS Administrative law - appeal from Federal Police Disciplinary Tribunal - nature and exercise of 'Jurisdiction in review of tribunal's decision - "sufficient evidence" to justify findings of fact. Complaints (Australian Federal Police) Act 1981 ss. 71, 72, 74, 75, 76, 77, 78, 79 Australian Federal Police Act 1979 Federal Court Act 1976 ss. 19, 20, 24 Australian Federal Police (Discipline) Regulations, Reg. 18 Federal Court Rules 0.53, 0.61 WARREN DAVID SCANES and KELVIN GEORGE THORN v. THE COMMISSIONER OF POLICE A.C.T. Nos. G.96, 97, 98 and 99 of 1983 Northrop, McGregor and Neaves JJ. 10 July 1984 Canberra. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A.C.T. No. G96 of 1983 GENERAL DIVISION ON APPEAL FROM THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: WARREN DAVID SCANES Applicant and THE COMMISSIONER OF POLICE Respondent CORAM: Northrop, McGregor and Neaves Ju. DATE: 10 July 1984 PLACE: Canberra ORDER THE COURT ORDERS THAT: 1. 'The appeal be dismissed. 2. The applicant pay the respondent's costs of the appeal. see ne ae IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ) ) ) ) A.c.T. ) ) G97 of 1983 ON APPEAL FROM THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: WARREN DAVID SCANES and THE COMMISS[ONER OF POLICE CORAM: Northrop, McGregor and Neaves JJ. DATE: 10 July 1984 PLACE: Canberra ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. Applicant Respondent 2. The applicant pay the respondent's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) A.C.T. No. G98 of 1983 ) ) GENERAL DIVISION ON APPEAL FROM THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: KELVIN GEORGE THORN Applicant and \ THE COMMISSIONER OF POLICE Respondent CORAM: Northrop, McGregor and Neaves JJ. DATE: 10 July 1984 PLACE: Canberra . ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. 'The applicant pay the respondent's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) A.C.T. No. G99 of 1983 ) ) GENERAL DIVISION ON APPEAL FROM THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: . KELVIN GEORGE THORN Applicant and THE COMMISSIONER OF POLICE Respondent CORAM: Northrop, McGregor and Neaves JJ. DATE: 10 July 1984 PLACE: Canberra ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A.C.T. Nos. G.96, 97, STRICT REGISTR 98 and 99 of 1983 GENERAL DIVISION ON APPEAL FROM THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: WARREN DAVID SCANES and KEVIN GEORGE THORN Applicants and THE COMMISSIONER OF POLICE Respondent COURT: Northrop, McGregor and Neaves JJ. DATE: 10 duly 1984 PLACE: Canberra NORTHROP J. REASONS FOR JUDGMENT On 9 December 1983, the Federal Police Disciplinary Tribunal ("the Disciplinary Tribunal"), constituted by its President, Kelly J., found the applicant Scanes guilty of two disciplinary offences under Reg. 18, Australian Federal Police (Discipline) Regulations, ("the Regulations"). On the same day the Disciplinary Tribunal found the applicant Thorn guilty of two offences under Reg. 18. On 23 December 1983 the Disciplinary Tribunal imposed penalties on each applicant a ae with respect to each of those offences. By notice of appeal dated 19 December 1983 each of the applicants appealed against the findings made against them. The four appeals came on for hearing on 4 May 1984 before a Full Court of the Federal Court of Australia. With the consent of the parties, the four appeals were heard together. Bach applicant is a member of the Australian Federal Police and thus is a member within the meaning of that word in the Complaints (Australian Federal Police) Act 1981 ("the Act"). Under the Regulations, which are made pursuant to the Australian Federal Police Act 1979, the Commissioner of Police is empowered to institute proceedings against a member of the Australian Federal Police in relation to a breach of discipline. Where such proceedings are instituted, they "shall be heard and determined by the Disciplinary Tribunal"; see s.67 of the Act. x The Commissioner instituted a number of proceedings against the applicants, including the four proceedings the subject of these appeals, in relation to breaches of discipline. The parts of Reg. 18 relevant for the purposes of this appeal are set out: "18. (1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member - (a)... (c) is negligent or careless in the discharge of his duties; (4) ais guilty of disgraceful or improper conduct, either in his official capacity or otherwise; (h) is found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country." The applicant Scanes was found guilty of one disciplinary offence under paragraph (d) of Reg. 18(1) and one disciplinary offence under paragraph (c) of Reg. 18(1). The applicant Thorn was found guilty of two disciplinary offences under paragraph (d) of sub-reg. 18(1). After the notices of appeal had been filed, the Disciplinary Tribunal imposed penalties on the applicants; see sub-section 67(3) of the Act and Reg. 22. The penalties so imposed are irrelevant for the purposes of the appeals. Division 5 of Part VI of the Act (comprising sections 78 - 81 inclusive) contains provisions relating to appeals to the Federal Court of Australia from decisions of the Disciplinary Tribunal. Under s.79, a party to a proceeding before the Disciplinary Tribunal "may appeal to the Court, on a question of law, from a decision of the Tribunal in that proceeding". The appeal is to be constituted in such manner as is prescribed by the Federal Court Rules; see paragraph (b) of sub-section 79(2). The Court has jurisdiction to hear and determine the appeal and that jurisdiction is to be exercised by the Court constituted as a Full Court; see sub-section 79(3). It must be remembered that despite the use of the word "appeal" in s.79 and that the appeal is heard and determined by a Full Court, the Court, in hearing and determining the appeal, is exercising original jurisdiction. The Court is not exercising appellate jurisdiction since the appeal is not from a court; see s.24 Federal Court of Australia Act 1976. For the nature of the original jurisdiction of the Court in the present case, see sections 19 and 20 Federal Court of Australia Act and s.79 Complaints (Australian Federal Police) Act. In addition to the matters already referred to, s.79 contains other provisions relating to the orders that can be made by the Court. Finally, reference is made in passing to the provisions of s.8l. As this summary of the provisions of Division 5 of Part VI of the Act illustrates, the nature of an appeal to the Court from a decision of the Disciplinary Tribunal is very similar to the nature of an appeal to the Court from a decision of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975; see sections 44, 45 and 46 of that Act. For that reason, decisions of the Court relating to appeals from the Administrative Appeals Tribunal are relevant in determining the nature of appeals from the Disciplinary Tribunal. There is, however, one 7 om ome ee eo ee difference of importance between the nature of those appeals. Paragraph (b) of s.78 Complaints (Australian Federal Police) Act provides: "78, In this Division, unless the contrary intention appears - (a)... (b) a reference to a question of law shall be construed as including a reference to the question whether there was sufficient evidence to justify a finding of fact by the Tribunal; ..." There is no corresponding provision contained in the Administrative Appeals Tribunal Act. Before departing from a consideration of the similarity between appeals under these two Acts, reference should be made to the similar statutory powers and duties conferred and imposed, upon the two Tribunals; sections 71 and 72 Complaints (Australian Federal Police) Act confer a number of powers upon the Disciplinary Tribunal. Sections 74, 75 and 77 relate to procedures and protection of members. Section 76 is of importance. Under sub-section (1), and subject to the Act and Regulations made under sub-section (4), the procedures of the Disciplinary Tribunal are within the discretion of the Tribunal. Sub-sections (2) and (3) are set out: miners er nee "76. (2) A proceeding before the Disciplinary Tribunal shall be conducted with as little formality and technicality and with as much expedition as the requirements of this Part and a proper consideration of the matter before the Tribunal permit. (3) The Disciplinary Tribunal is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks appropriate." Sub-section (5) requires the Disciplinary Tribunal, in proceedings heard by it pursuant to s.67 to "give reasons in writing for its decision and those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based". The corresponding provisions applicable to the Administrative Appeals Tribunal are contained in sections 32, 33, 35, 40 and 43 Administrative Appeals Tribunal Act. Under s.43, the Administrative Appeals Tribunal is required to give reasons either orally or in writing for its decisions and may be required to give its reasons in writing. When the reasons are given in writing they "shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". awe es Under 0.61, Federal Court Rules, the provisions of 0.53 "shall apply mutatis mutandis to an appeal to the Court on a question of law from the Disciplinary Tribunal made pursuant to s.79 of the Complaints (Australian Federal Police) Act. Order 53 relates. to matters under the Administrative Appeals Tribunal Act. Under 0.53, r.2 an appeal to the Court from the Administrative Appeals Tribunal is instituted by filing a notice of appeal in accordance with Form 55A in the Schedule of the Rules. That form requires that each question of law raised on the appeal must be specified. The notices of appeal filed in the four appeals presently before the Court did not specify the questions of law raised on the appeals. This defect was drawn to the attention of counsel for the applicants at the commencement of the hearing of the appeals. Thereafter, the applicants were given leave to amend each of the notices of appeal by inserting in each of them the following paragraph: i "2. Questions of Law Raised on the Appeal are:~ (i) Whether the Tribunal could entertain a complaint alleging as a disciplinary offence conduct which amounted to a criminal offence before a person the subject of such complaint has been charged with and convicted of such an offence. (ii) Whether the evidence before the Tribunal was sufficient to justify the findings of fact made by the Tribunal. (iii) Whether the decisions of the Tribunal should be set aside on the grounds that the same are and were unsafe and unsatisfactory." Question 2(i) was included to protect the interests of the applicants if the matter should go further. The question raises an issue with respect to the three findings based on paragraph (da) of Reg. 18(1). The facts giving rise to the findings of being guilty of disgraceful or improper conduct could support convictions by a court of an offence against a law of the Australian Capital Territory, and if convictions were entered, those convictions could constitute disciplinary offences under paragraph (h) of Reg. 18(1). The question seeks to raise also the issue of whether a member can be found guilty of a disciplinary offence under paragraph (dad) when the same facts show that an offence against a law of the Territory might have been committed but there exists no finding of guilt by a court in relation to such an offence. ' In Hardcastle v. Commissioner of Police, Federal Court of Australia, 13 April 1984, unreported, a Full Court constituted by Bowen C.J., Gallop and Lockhart JJ. held that there was no substance in a submission that the Disciplinary Tribunal had no jurisdiction to make a finding of guilty under paragraph (da) where the same facts constituted an offence against a law of the Territory. In the course of its joint judgment, the Court said: "In our opinion there is no substance in this submission. It misconceives the character of disciplinary proceedings in general and under the Discipline Regulations in particular. The object of disciplinary proceedings under the Disciplinary Regulations is 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.U.d.R. 362 per Barwick C.J. at p.364) or to exact retribution (see Ex parte Attorney-General (Cth); rea 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' is 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 is consonant with the evident purpose of the paragraph when considered in the context of the Discipline Regulations as a whole. There is no room for the application of what is sometimes misleadingly called the principle of double jeopardy in this case. If the appellant 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 law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The two proceedings are essentially different in character and result." (See p.6.) In any event, the conviction of a member by a court of an offence against a law of the Territory itself constitutes a disciplinary offence under Reg. 18(1). ~10- This Court is required to follow the decision in Hardcastle v. Commissioner of Police. It follows, therefore, that the Disciplinary Tribunal had jurisdiction to entertain the proceedings against the applicants based upon paragraph (d) of Reg. 18(1). . Question 2(iii) is based upon what was said in Chamberlain v. R. (1984) 51 A.L.R. 225 per Gibbs C.J. and Mason J. at p.234, namely: "For these reasons, in our opinion, the Full Court of the Federal Court, on appeal from the Supreme Court of a Territory, has the power and duty to set aside the verdict of a jury in a case where a miscarriage of justice has occurred, including a case where it would be unsafe or dangerous to allow the verdict to stand. The decision to the contrary in Duff ve R [(1979) 28 A.L.R. 663] was, in our respectful opinion, erroneous." In that case and -in that passage the High Court was considering the nature of the appellate jurisdiction of the Federal Court of Australia. The principle so enunciated has no application where the Federal Court is exercising original jurisdiction in hearing and determining an appeal on a question of law from an administrative tribunal. In matters of that type, where an applicant is contending that the evidence and material before a tribunal does not support the finding made, the applicant must establish that the evidence and material before the tribunal was such that no tribunal properly directing itself as to relevant matters of law could =_—~ 3 -~jl- have made the finding it did. The true position is stated in Collins v. Minister for Immigration and Ethnic Affairs [1981] 58 F.L.R. 407 per Fox, Deane and Morling JJ. at pp.410-411: "A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an _ unreasonble decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence, belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses (see s.33(1){c) of the Administrative Appeals Tribunal Act 1975). An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based." Having regard to the provisions of paragraph 78(b) of the Act, in the present case matters relevant to deciding whether the decision of the Disciplinary Tribunal should be set aside on the ground that the same are and were unsafe and unsatisfactory may be relevant, even though the standard of proof may be different. It is appropriate, however, that those matters should be considered as if they arose under Question 2(ii). ~12- The question of law raised by Question 2(iii), apart from its relevance in Question 2(ii), can have no application to an appeal from the Disciplinary Tribunal. Question 2(ii} is based upon the provisions of paragraph 78(b) of the Act. That paragraph has been set out earlier in these reasons. Any apparent conflict between sub-section 76(1) under which the Disciplinary Tribunal is not bound by any rules of evidence and the expression "sufficient evidence" in paragraph 78(b) does not arise in these appeals since the Disciplinary Tribuna] made its findings on evidence that would have bcen admissible in a court of law. In accordance with the requirements of sub-section 76(5) of the Act, the Disciplinary Tribunal gave "reasons in writing for its decision" and those reasons included "its findings on material questions of fact and a reference to the evidence ... on which those findings" were based. The President of the Tribunal gave long and careful reasons. He made detailed reference to the evidence before him. He stated his opinion on the credibility of witnesses. He was meticulous in his assessment of the evidence and of the witnesses. He stated and applied the correct legal principles relating to the onus of proof in matters of this seem eee - 13 - kind. He set out his findings on material questions of fact and to the evidence on which those findings were based. He made the findings of guilty which are the subject of these appeals. He made findings of not guilty with respect to other charges against the applicants under Reg. 18(1). For present purposes, it is sufficient to say that the facts giving rise to the appeals arose out of events which occurred in the early hours of the morning of 16 July 1982 when the applicants, in the course of their duties, attended an incident involving a motor vehicle in Commonwealth Avernve, Parkes. Arising out of those events, the applicant Scanes was found guilty of the two offences referred to already. In substance, the ultimate findings of fact constituting the first offence were that he seized the driver of the vehicle and "pulled him out of his motor vehicle and then did strike him about the head with his hand". In substance, the ultimate findings of fact constituting the second offence were that having required the driver "to produce for inspection his licence to drive a motor vehicle, and" the driver "having so produced his licence, he [Scanes] failed to ensure that the said licence was returned to him". Arising out of the same events, the applicant Thorn was found guilty of the two offences referred to already. In substance, the ultimate findings of fact constituting the - 14 - first offence were that he removed "two flagons from a vehicle owned by" the driver "and then did break one of the said flagons". In substance, the ultimate findings of fact constituting the second offence were that he tore "two pages from a pocket diary owned by" the driver. In his submissions, counsel for the applicants made a detailed examination of the evidence before the Disciplinary Tribunal. He contended that in a number of respects the Tribunal should not have accepted parts of the evidence of certain witnesses. He argued that the findings of guilt were against the evidence and the weight of the evidence. He contended that the Tribunal failed to take into account reasonable, in fact probable, hypotheses consistent with the innocence of the applicants. He submitted that all these matters resulted in an error of law being made in the findings of guilt. . Counsel submitted that under paragraph 78(b) of the Act a question of law included a question of whether there was "sufficient evidence to justify a finding of fact by the Tribunal". He contended that this statutory provision was intended to ease the strict requirements applied to appeals from the Administrative Appeals Tribunal to the Federal Court. He argued that this statutory provision made an ~15- applicant's task less arduous when appealing from a decision of the Disciplinary Tribunal. It becomes necessary, therefore, to construe the relevant part of paragraph 78(b). There is much force in the submission that paragraph 78(b) was intended to ease the strict requirements applicable to appeals to the Federal Court from the Administrative Appeals Tribunal. In enacting paragraph 78(b), the Legislature must have been aware of those strict requirements and paragraph 78(b) must be construed accordingly. The words "sufficient evidence" have been considered in many cases, but normally where they appeared in an enabling statute providing that specified material shall be "sufficient evidence" to establish a stated fact. The question in those cases normally has been whether that material is to be treated as conclusive or not; see In re ~ Duce & Boots Cash Chemists (Southern), Limited's Contract [1937] 1 Ch. 642 per Bennett J. at pp.649-50. Those authorities do not assist in the present case where an object is stated, namely "a finding of fact", and the question is whether there was sufficient evidence to justify that object. In the context in which it appears, a meaning must be given to the words "a finding of fact". The question is, do those words describe the ultimate finding of fact eye ee ee -~ 16 - made by the Disciplinary Tribunal or do they refer to each and every primary finding of fact necessarily considered by the Tribunal and upon which the ultimate finding of fact rests. The relevant processes to be applied in determining facts by a jury are discussed in Chamberlain's case by Gibbs C.J. and Mason J. at pp.234-40, a passage that should be read. That passage relates to a verdict of a jury which is not required to give reasons in writing for its verdict, nor is it required to state "its findings on material questions of fact and a reference to the evidence ... on which those findings" were based. That passage relates also to criminal trials based on circumstantial evidence. That passage refers to court procedures, but by analogy can have application to an administrative body. That passage is dealing with the criminal onus of proof, but by analogy has application where the civil onus applies. At pp.237-8 the following passage appears: * "It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, wnether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is awe eee oe -17- alleged, and in ae criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v- Vines (1952) 85 CLR 352 at 358; and Barca v. R (1975) 133 CLR 82 at 104). The Statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd [1940] ac I5e0 at 169, that "there can bé no inference unless there are objective facts from which to infer the other facts which it is sought to establish' is obviously as true of criminal as of civil cases." Further, under sub-section 76(5) the Disciplinary Tribunal, in giving its reasons for decision, set out "its findings on material questions of fact" as well as the evidence on which those findings are based. In the present case, in his reasons for decision, the President said in relation to the first offence alleged against the applicant Scanes, "I am satisfied that" the charge "has been made out against Sergeant Scanes". In relation to the second offence, the President said, "I find" the charge "proved against Sergeant Scanes". In relation to the first offence alleged against the applicant Thorn, the President said, "I find Constable Thorn guilty of the disciplinary offence in relation to" the driver's "diary or notebook". In relation to the second offence, the President said, "I find" the charge "proven to the extent of the taking of the two flagons and the deliberate breaking of one". The Disciplinary Tribunal then issued formal documents each headed "Findings". In each of those documents the words "The Tribunal Finds That" were followed by a statement that the relevant applicant was guilty of the disciplinary offence alleged in - 18 - that, there then being set out the ultimate findings of fact which constituted the conduct amounting to the disciplinary offence. The applicants appeal from those findings. The questions of law raised by the appeals are whether there was sufficient evidence to justify those findings of fact. In the course of submissions counsel examined the evidence directed to each primary fact in an attempt to establish that some of those findings of primary fact should not have been made. This is a course which should not be adopted, as is illustrated by the opinions expressed in Chamberlain's case. For instance, in the present case, the Disciplinary Tribunal made a large number of primary findings of fact, many of which were not relevant to the ultimate findings of fact. The absence of sufficient evidence to justify some of the primary findings of fact which were not relevant to the ultimate findings of fact could not effect the ultimate findings of fact. The word "sufficient" has many different meanings. Among its ordinary meanings are "of a quality, extent or scope adequate to a certain purpose or object", and "of things"; "of adequate quality ... substantial". The word "sufficient" imports a relative concept. In the phrase "sufficient evidence" the question is whether that evidence is of a quality, extent or scope adequate to justify the findings of guilt by the Disciplinary Tribunal. In paragraph -~ 19 - 78(b) the words "to justify" have the meaning of "to prove". In this regard the degree of proof required becomes relevant. In the present appeals the question of law raised by Question 2(ii) is whether the evidence before the Disciplinary Tribunal was of adequate quality, intent or scope to prove the ultimate findings of fact made by the Tribunal. This does not mean that the Court is to substitute its views on the facts for those of the Disciplinary Tribunal. This does not mean that this Court is to decide whether it would be unsafe or dangerous to allow the ultimate findings of fact to stand. In Chamberlain's case, Gibbs C.J. and Mason J., in part of the passage already referred to, said at pp.234-5: "In the recent case of Whitehorn v. R (1983) 57 ALJR 809 the court again affirmed that a verdict may be set aside as unsafe and unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted. Dawson J (with whom Gibbs CJ and Brennan J expressed general agreement on this aspect of the cese) said at 821 that the question which an appellate court has to decide when called on to consider whether a verdict ought to be set aside because it would be unsafe, unjust or dangerous to allow it to stand is 'whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." - 20 - To adapt that passage, what the Federal Court must do when considering an appeal from the Disciplinary Tribunal when the question of law is whether there was sufficient evidence to justify the findings of fact made by the Tribunal is to determine whether, upon the whole of the evidence before the Tribunal, it was open to the Tribunal on the balance of probabilities, to make the findings of fact challenged. In this respect, the phrase "balance of probabilities" is used in the sense described in the judgment of Dixon J. in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336, and in this respect the following short extract at pp.361~2 is set out from the much longer passage dealing with this matter: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are consideraticns which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." 7: In the present case it is not necessary to make any detailed reference to the reasons for decision by the Disciplinary Tribunal nor to the evidence contained in the transcript. Questions of credibility of witnesses played a -~ 21 - large part in the assessment of evidence by the Tribunal. From a consideration of the whole of the evidence contained in the transcript and from the reasons for decision, it is manifestly clear that it was open to the Disciplinary Tribunal to make the ultimate findings of fact which it did. Put another way, there was sufficient evidence to justify the findings of fact made by the Tribunal. Finally, it should be noted that there was no suggestion made by counsel for the applicants that the ultimate findings of fact made by the Disciplinary Tribunal could not in law constitute the disciplinary offences for which the applicants were found guilty. Each of the four appeals should be dismissed with costs. T certify that this and the TWENTY (20) preceding pages are a true copy of the Reasons for Judgment herein of the i Honourable Mr. Justice R.M. NORTHROP Associate PLOAS | IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY Nos. ACT G96 and 97 of 1983 ~ eww er DISTRICT REGISTRY Nos. ACT G98 and 99 of 1983 AN APPEAL FROM THE PEDERAL POLICE DISCIPLINARY TRIBUNAL Nos. ACT G96 and 97 of 1983 BETWEEN: WARREN DAVID SCANES Applicant AND: THE COMMISSTONER OF POLICE Respondent Nos. ACT G98 and 99 of 1983 BETWEEN: KELVIN GEORGE THORN Applicant AND: THE COMMISSTONER OF POLICE Respondent CORAM: Northrop, McGregor and Neaves Jud. DATE: 10 July 1984 REASONS FOR JUDGMENT McGreqor and Neaves JJ. WARREN DAVID SCANES (Sat. Scanes) and KELVIN GEORGE THORN (Const. Thorn) have appeaied against certain decisions of the President of the Federal Police Disciplinary Tribunal given on 9 December 1983. The Tribunal found Sat. Scanes quilty of disciplinary offences set out below, viz. - 2. "That he was quiltv of improper conduct in his official capacitv. contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did seize Danilo RABER and pull him out of his motor vehicle and then did strkxe him about the head with his hand." "That he was careless in the discharge of his duties contrary to the provisions of paragraph 18(1)(c) of the Australian Federal Police (Discipline) Requlations. in that on or about 16 July 1982. having required Danilo RABER to produce for inspection his licence to drive a motor vehicle and the said Danilo RABER having so produced his licence. he failed to ensure that the said licence was returnea to him." Const. Thorn was found auilty of the following disciplinary offences - "That he was quiity of impreaper conduct in his official capacity, contrary to the provisions of paragrapn 18(1)(d) of tne Australian Federal Police (Discipline) kKequiations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between tne Albert Halil and Commonwealth Avenue Bridaqe, Canberra in the Austrai1an Capital Territory, he did remove 2 flagons from a vehicle owned by Danilo RABER and then did break one of the said flagons." "That he was quiltv of improper conduct in his official capacity, contrary to the provisions of paraqraph 18(1)(d) of the Australian Federal Police (Disciplines Requlations. 1n that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did tear two pages froma pocket diarv owned by Danilo RABER. "" 3. Pursuant to the Australian Federal Police Act 1979 there have been mace the Australian Federal Police (Discipline) recuuations. tn Division 2 of Part II under the heading ''Cisciplinary Ofrtences" reg.18, so far as is relevant, reads - "(1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member - (c) is negligent or careless in the discharge of his duties; (da) ais guilty of disgraceful or improper conduct, either in his official capacity or otherwise; Ch) is found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country. (2) ...." The Disciplinary Tribunal was established by the Complaints (Australian Federal Police) Act 1981 (the Complaints Act) s.54(2). Section 67 of the Complaints Act provides that where proceedings are instituted by the Commissioner of Police or in {u inst a member in respect of a breach of discipline under the rescribed regulations i.e. those made under the Australian ny sseral Police Act 1979 referred to above (s.3(4) ibid and reg.3 oz the Complaints (Australian Federal Police) Regulations), those proceedings shall be heard and determined by the Disciplinary Tribunal. Section 76 of the Complaints Act, so far as relevant, reads - 4. "(1) In a proceeding before the Disciplinarv Tribunal. the procedure of the Tribunal 15. subtect to this Part. and to the reaulations, within the discretion ot the Tribunal. (2) A proceeding before the Disciplinarv Tribunal shall be conducted with as little formality and technicality and with as much expedition as the requirements of this Part anda proper consideration of the matter before the Tribunal permit. (3) The Disciplinary Tribunal 1s not bound bv anv rules of evidence but may inform itseif on anv matter in such manner as 1t thinks appropriate. Where the Disciplinary Tribunal in such proceedings rinds a member quiltv of a breach of discipline and the Tribunal 15 constituted bv the President, it may 1meose certain oenalties referred to in s.07 of the Complaints Act. That 1s the course which has been followed nere. Secticn 79 in Division 5 of Part Vi of the Complaints Act provides for an appeal to the Federal Court of Australia on a question or law. Section 78(b) reads - "{b) a rererence to a questisn of law shail be construed as including a reference to the question whether there was sufficient evidence to jJustitv a finding of fact bv the Tribunal;" The Court in such circumstances constituted as a Full Court has jurisdiction to near and determine the appeal. (s.73(3)); thoudh in so doina the Court will be exercising original jlurisdiction. This Court is thus seized with these appeals. The Court shall. in determining them, make such order as 1t thinks appropriate, s.79(4), 5. The facts out of which this matter arose concerned events which took place earlv in the morning of 16 July 1982 in Canberra Avenue in the vicinitv of Albert Hall and Commonwealth Avenue Bridge, Canberra. After a report from a tax1 driver that a vehicle had been stationary in that area for some time, a mobile police patrol was directed to investiaate. The first police vehicle at the scene (with a radio call sian "Hotel i4") was one in charge of Constables Crampton and Cantle. Thev found Danilo Raber in it in the driver's seat. Shortly after. a 3econd police car ("Hotel 8") in charge of the two applicants arrived whereupon the first vehicle left. What occurred thereafter. to which more detailea reference is made later, gave rise to the charges before the Disciplinary Tribunal. The learned President noted that through their solicitors each of the officers promptly denied all of the charges against them. After the hearing before this Court commenced it was pointed out that the Notices of Appeal filea on behalf of each applicant were deficient in that they did noc set out, as form 55A ain the First Schedule to the Federal Court Rules (made applicable bv Order 53 ¥r.2 and Order 61 £.2) requires. tne questions of law raised in the appeals. Counsel for the applicants sought and was aranted leave to file amended Notices of Appeal. 6. Each of the amended Notices of Appeal set out the following as the questions of law raised in the appeal - "(1) Whether the Tribunal could entertain a complaint alleqing as a discipiinaryv cffence conduct which amounted to a criminal offence before a person the subiect of such complaint has been charged with and convicted of such an offence. (ii) Whether the evidence before the Tribunal was sufficient to justify the findings of fact made bv the Tribunal. (111) Whether the decisions of the Tribunal should be set aside on the grounds that the same are and were unsafe and unsatisfactory." The amended Notices of Appeal also stated the Grounds of Appeal relied upon. It 15 unnecessary to set them out in full. It is sufficient to note that the applicants contend that certain findinas of the learned President were against the evidence and the weight of the evidence. tnat certain evidence had been wrongly disregarded, that the evidence of Danilo Raber was unsafe and unreliable, that irrelevant matters nad been considered and that relievant matters had not been sufficiently taken anto account. The applicants were represented by Mr. Hiaqains. He conceded that on the evidence a finding of quiltv against Sat. Scanes on the second offence relating to failina to ensure the driver's licence was returned to Danilo Raber was open: that he did not wish to make any supmission concerning it. 7. Arguments advanced on behalf of both applicants included that the decisions should be set aside because they were so much against the evidence and the weight of the evidence as to be "unsafe and unsatisfactory" (or unsafe or danqerous) in the circumstances. Counsel cited House v. R. (1936) 55 C,L.R. 499; Chamberlain v. R., (1984) 51 ALR 225 per Gibbs C.J. and Mason J. at p.234. In summary i1t was submitted that the decisions and finainas of the learned President were 50 mucn against the evidence and the weight of the evidence and so failied to take account of reasonable and. indeed. probable hypotheses consistent with innocence as to make it 2rroneous in law for him to have decided as he did. Factors which were advanced in support of this arqument were his failure to agive due weight to certain medical evidence. of discrepencies in Danilo Raber's evidence both internally and when compared with other witnesses. It was contended that Danilo Raber was quite olainlv makina a false accusation and had in all probability irritated a pre-existing minor iniwurv to cause some bleeding so that he might blame police for that injurv. It was contended that to reject that theorv as quite "bizarre" was an error. Further. 1n support of the ground related to findings being against the evidence, it was submitred that the learned President should not have placed reliance on the evidence of Mr. Pelle supporting a conclusion that a certain bruise on the face of Danilo Raber was caused in the eariv hours of 16 July 1982: that this was inconsistent with the onus of 8. proof being applied in the absence of anv evidence as to how the bruise examined by Dr. Smythe on that day would have appeared on 15 July to those lay witnesses who saw Raber; so 1t was a reasonable hvpothesis that Raber's injuries had been rece2red before he was spoken to bv Police at the relevant time: and that bleeding observed after Sat. Scanes and Const. Thorn saw him was self induced. Counsel referred us in detail to the evidence pointing to what he regarded as discrepant and improbable. He referred to various conflictina testimony which we do not find it necessary to repeat here. Counsel for the respondent submitted that neither the Grounds of Appeal nor the alleged "Questions of Law" disclosed anv arquable ground of law; that wnat had been sut forward on behalf of Sqt. Scanes and Const. Thorn was ro more than factual argument and thus not one for consideration by this Court. He referred to Collins v. The Mainistor for Immigration and Ethnic Affairs (1381) 36 ALR 598. Further, said counsel, the purpose of a Disciplinary Tribunal was not to punish but was to protect the public: so it may discipline on evidence ¢.qa. even hearsav evidence which could not be used ina prosecution in acriminal court. he submitted that primarv fact finding could and did in this matter depend on credibilitv. He referred to Benmax v. Austin Motor Co. Ltd. £19551 A.C. 370: Wheat v. E. Lacon & Co. Ltd. £19667 A.C. 552. 9. An examination of the Reasons for Decision by the learned President showed that he analysed the facts and set them out in areat detail. He referred to the dearee of proor necessarv in these matters, and in terms which counsel accepted as appropriate. The approach taken by the learned President was clearly correct: cf. Ex parte Attorney-General for the Commonwealth: Re a Barrister and Solicitor (1972) 20 F.L.R. 234 and Scanes v. Commissioner of Police (1974) 3 A.C.T.R. 20 at pp.26-7. He expressed himself as satisfied or otherwise made relevant findings of fact (which have oeen numbered for convenience) inciudina - {1} When Mr. Raber was first approached 57 the crew of Hotel 14 he was aslcen. (ii) The typed transcript ot a tape rscoraind wireless traffic oetween Police Headquarters, Canberra, and Mobile Patrols was accurate. (111) There was a practice that Monrie Patrols should indicate their location from time to time. (iv) When the witness, Mrs. O'Rourke, vreferrea to bruising, she meant that which was visible on the morning of Fridav le Julv 19872. (v) Mrs. O'Rourke was a truthful witness thoudn she had some difficulties with Enalish. (vi) Mr. Raber's car was parked initialiy adiacent to the Albert Hall. (vi) The statements made by Const. Thorn ana Sat. Scanes in their statements that the location at which they attended was respectively adjacent to the Canberra Hotel and opposite the Canberra Hotcl was not acceptabie. (viil1) There was no reason to doubt anv of the evidence of Constables Crampton, Cantle. Kent and Smeltink and Station Serqeant 0 Dovle. 10. (1x) The evidence aiven by Mr. Nicholl, Mrs. O'Rourke, Mr. Pelle and Dr. Smvthe was aenerallv accurate. (x) The statement made by Actina Chief Inspector Craft was true. The learned President set out a number of circumstances concerning which he was satisfied, viz - (a) The initial location of Mr. Raber's vehicle at a point near the Albert Hall south of the Commonwealth Avenue Bridge and in front of the third tree in the line of trees south of that bridge shown in photographs Nos.7 and 8 in Exhibit C. (b) At 2.48 a.m. a taxi driver reported the presence of Mr. Raber's vehicle at that location to the police. (c) At 2.50 a.m. Sergeant Scanes in Hotel 8 was requested to iaok into the matter. Hotel 8 was then at the far end of Canberra Avenue near H.M.A.S. Harman. (d) About aminute later the crew of dotei 14 became available for further tasks. (e) Immediately or almost immediately thereafter Sergeant Scanes requested his Headquarters to assian the' crew af Hotei 14 to the investigation. (ft) Whatever supervisorv role Sergeant IZcanes had on that morning it was not a role which prevented him carrying out euch investigations as that unto the silent alarm at che "Pules Club. Canberra Avenue, Manuka'. (a) There was no suqqestion inthe record of wireless trarfic that the message concernina the car at the Albert Hali was airected to Sergeant Scanes as supervisor because all other cars were attending to messages. (That is not to sav that what Sergeant Scanes said in his statement. Exhibit K., concerning that may not in fact have been correct). (h) When Constables Crampton and Cantle left the scene bv not later than 3.02 a.m. Mr. Raber was still in his car. (1) (7) (k) (1) (m) {n) (0) fr) ll. When Constables Crampton and Cantle left the scene Mr. Raber had no sign of slood on his face. At all material times Mr. Raber was under the influence of intoxicating liquor but not to such a degree that he could not remember any of the incidents which took place; witness his recollection of the inspection of the exterior of his car, an inspection to which Constable Thorn also denosed. It is most likelv that Mr. Nicholl, having left Colbee Court. Phillip at 3.20 a.m... reached the point north of Commonwealth Avenue Bridge where he first saw Mr. Raber by not later than 3.35 a.m. and probably as early as 3.30 a.m. Constable Kent a few minutes e¢arlier had traversed a distance from the Woden Vallev Hospital to tne City Police Station parking area, a distances which could not have been much different from that traversed by Mr. Nicholl from Cslbee Court, Phiiiin to the point where he saw Mr. Faber. in dust under eight minutes. When Mr. Nacholl first saw Mr. Raber. Mr. Raber had blood on the lower part of his face which had not stopped bleeding but was not bleeding freelv. Mr. Raber qave evidence. evidence which was unchallenged and not objected to, indeed partly led by counsel for the two officers, that he had complazrned to Mr. Nicholl that the police had hit him and he didn't know why. When first seen by Mrs. O'Rourke on the morning of 16 July 1982 Mr. Raber''s face was bruised. Sergeant Scanes 18S noticeablv bigger than Constable Thorn. The smell detectable on Mr, Raber's breath and from inside his car was of wine fumes. There was no smell of intoxicating liquor apparent from any source outside Mr. Raber 5 car when Hotel 8 arrived at the scene near tho Albert Hall. (s) ' The also satisfied were sustained between 3.02 a.m. and 16 July 1962. The 12. The light was good enough to enable Constabie Thorn, standing outside a car, to take particulars of Mr. Raber''s licence without a further light source and to enable the state of Mr. Raber's fly to be observed. learned President further stated that he was that the injuries to Mr. Raber's mouth and nose Gu learned President further found (and adain paraqraphs have been numbered for convenience) inter alia - (x1) (X11) (X111) (xiv) (xv) (xv1) The intury to Mr. Raber s eye was the sort of initury which would nave been obvious to anyone had 1t been mresent the dav before. The evidence to tne contrary by Dr. Smythe was not acceptable. The opinion evidence or Dr. Smythe, though modified in cross examination, was consistent with receipt bv Mr. Raber of the injury to his mouth in the earlv morning of 16 Julv 1982. There were no set of circumstances put forward which would enable it to be said that in upwards of 30 minutes after the departure of Constables Crampton and Cantle another incident took place wherein the iniuries received bv Mr. Raber were caused. The auniurzes on Mr. Raber were iunriicted in some such manner as he claims. Nothing in the evidence suggests that the unjurles received were sustained in 4 fall. The rull and empty flaqons were taken from the car by Constable Thorn but he smashed onlv the empty one; though unabic to determine the ultimate fate of the second flaqon. he was unable to accept the evidence of Const. Thorn as to the discovery of the glass. -35 a.m. on the morning of the 13. (xv) Mr. Raber's evidence about the matters which lie 'at the core of these charges" was not a lie. {xv1) Mr. Raber was not attempting to harm anv police officers out of malice. (xv11l) Mr. Raber was labouring under a sense of genuine arievance 1.e. "the police are not allowed to smack the people". (xv111) There was nothina in the demeanour of Constable Thorn which assisted him to decide one way or the other where the truth lay. (x1x) The evidence of Sat. Scanes was not acceptable. (xx) The last finding was based upon the demeanour or the witness and "a verv strona circumstantial case'. (XxX1) Some incident involving force may well have taken place in Acton Park during what night 5e described as the "second incident". {xx11) Const. Thorn. having taken the appropriate particulars from the licence. returned 1t to Sat. Scanes. (xx111) Sat. Scanes farled to return 1t to Mr. Paber. (¥Z1LV_ Const. Thorn's evidence concerning hie discovery of the glass was unacceptable. We would observe that so far as it 18 necessary to sav so, all of these findings were, with respect. open to the learned President. Reference was made during arqument to the meaning of the word or phrase "sufficient evidence'"in s.87'b) of the Complaints Act. There, counsel for the applicants, reterrinag to ""sutficient" said 1t meant "enouagh". Presumably he implied that it meant sufficient for the purpose with which the Tribunal was then concerned. In Black's Law Dictionary Fifth Edition at p.1285, "surficient evidence" 1s referred to thus - 14. "Adequate evidence; such evidence, in character. weight, or amount, as will Ileaally jJustifv the qudicial or official action demanded; according to circumstances, it may be "prima facie" or "satisfactory" evidence. Sufficient evidence 15s that which 1s satisfactory for the purpose; that amount of proof which ordinarily satisfies an unprejudiced mind. bevond a reasonable doubt. The term 1s not svnonvmous with 'conclusive;" but it mav be used interchangeably with the term "weight of evidence". In Tavlor on Eviaence llth ed. VYol.l p.2 para.2Z. ome general observations are made by the learned authors as foliows: - "By competent evidence 1s meant that which the law requires, as the fit and appropriate proor in the particular case, such as the orceduction of a writing, where its contents ar2 the fubiect of inqaulryv. By satisfactory evidence, which 15 sometimes called sufficient evidence, is untended that amount of proof which ordinariiv satisfies an unpreiudiced mind beyond reasonable doubt. The circumstances which will amount to this aegree of eroor can never be previously defined; the onlv leqal test of which they are susceotible 15 their sutficiencv to satisfv the mind and conscience of an ordinarv man; and so to convince him. that he would venture to act upon that conviction in matters of tmportant personal interest." Garbutt v. Durham Joint Committee L1906] A,C. 291 was or the certificate of concerned with the evidentiary value "approved service' under s.4 ofr tne Poiice Act 1350 referring to the use to be made of this certificate. Lord Goreburn L.c. said at p.294 - "It was a certificate under the 2nd sub-section of s.4, which has to be sianed by the chief officer as distinguished from the police authoritv. In the first place, 1m mv opinion, the certificate of the chier officer was not conclusive of anvthing. It was sufficient evidence - that 1s to sav. the Court miaht act upon it 1f they thought fit." 15. We note that there 1s a distinction in s.76/5) in the sense that the phrase referring to 'the requirement that the Tribunal shall give reasons in writing adds - "...,and a reference to the evidence or other material on which those findings are based." In our view, the word "evidence" as used in s.78(b) includes more than 1s usually so regarded in a ocourr of law. Despite the distinction made in -76(5) (supra) the word "evidence" in s.78(b) is not to be construed as referring to that body of proof received pursuant onlv to tne strict rules of evidence which are applied in a court of law. In this regard we are mindful of s.76:(3) set out above. However that may be, in our view, there nas not been shown to be any reason why this Court should accept that 1n anv way the conclusions. primary and ultimate, of the learned President were other than compieteiy open to nim, aiven that he was not only entitled, but oven recuirea, "o assess the credibility of witnesses. No error of lav in the way ne went about this task has been revealed. If we may say so, e Reasons ct oy for Decision evince a most detarled evaluation of the facts and circumstances before the learned President. Though we have spent some time referring to the factual backaround, 1t 18 to be rememberea that the appeal here 1s ona question of law, that expression to be construed as expanded by s.78(b). We refer now to those questions of law which are the same in each Amended Notice of Appeal. 16. As to the first question of law there ius no error demonstrated in the Tribunal dealing with a matter which mav be susceptible of forming part of or being made the subiect of a charge 1n a criminal matter. The Complaints Act, in plain terms, entrusts consideration of such a charge to the Disciplinary Tribunal without reservation. This contention was advanced and reiected, as counsel for the applicants was aware, in Hardcastle v. The Commissioner of Police, a decision of the Full Court of this Court published on i3 April 1384 as vet unreported. Their Honours said at pp.6 and 7 - "Tt was submitted that para.18(1)(d) should therefore be so construed as to remove the possibilitv of the occurrence of double jeopardy. Counsel relied on anarticle "Double Jeopardy and Police Disciplinary Proceedings" by Aian E. Greaves (Inspector, West Yorkshire Metropolitan Police) 1983 Crim. &.R. 211 which discussed the principle of double jieopardy in relation to the Police Acts 1964 and 1976 of the United Kinadom. In our opinion there is no substance in this submission. It misconceives the character of disciplinarv proceedings in general and under the Discipline Reaqulations in particular. The obiect of discaplinarv proceedinas under the Uiscipline Regulations 1S to protect the public, to maintain proper standards of conduct oy members of the Australian Federai Police and to protect the reputation of that body. The obtect of disciplinary proceedinas is not to punisn (see Harvey v. Law Society of New South Waies '1975) 49 A.L.J.R. 362 per Barwick C.J. at p.364) or to exact retribution (see Ex parte Attornev-General (Cth); re a Barrister and Solicitor (1972) 20 F.L.R. 234 per Fox, Blackburn and Woodward JJ. at 0.244). The expression "disqraceful or improper conduct" is of wide import; sometimes it wili 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 accordina to their ordinary and natural meanina, a construction wnich 1S consonant with the evident purpose of the paraaqraph when considered in the 17. context of the Discipline Requilations as a whole. There is no room for the application of what 15 sometimes misleadingly called the principle of double 'ie0pardy in this case. If the appellant were charqed with. and convicted of, the same unlawful assaults as are the subzect of the disciplinary offences he would not face double jeopardy or be punished twice for the same cifence, He would be convicted of an offence aqainst the criminal law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The two proceedings are essentially different in character and result." Counsel sought only to keep the aqround open for appeal, possibly, to a higher court. We do not need to consider it further except to sav that not onlv are we bound bv the decision referred to but. with great respect. aqree with it. The second question of law identified in the Amended Notices of Appeal is basea upon s.78(b) of the Complaints Act. The Court is asked to set aside a number of findinas of fact made by the Disciplinary Tribunal on the basis that the evidence before the Tribunal was not surficient to justifv those findings. It 18 convenient to begin an examination of the issue so raised bv referring to the words of Fox, Deane and Morling JJ. in Collins v. The Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at p.601 - "We would, however, comment that the concepts of a decision being against the evidence and of beind against the weight of the evidence belong to appeals from courts of law and have particular application to ury verdicts. Even in that context. thev donot involve questions of law. They certainliv have no place when the appeal. or review. 1s of proceedings of an administrative tribunal which 1s not bound bv the rules of 18. evidence and which, subject to the obliqation to observe the requirements of natural tustice, can inform itself as 1t chooses: see s.33(1l)(c) of the Administrative Appeals Tribunal Act 1975. An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, 1f he is to succeed, that there was no materlal before the Tribunai upon which the conciusion could properly be based." It is apparent from what has already been said that the applicants have not satisfied the test there propounded - thev have not shown that there was no material before the Discipiinary Tribunal upon which the conclusions could properiv be based. However, Collins v. The Minister for Immigration and Ethnic Affairs (supra) was concerned with the provisions -7ontainea in the Administrative Appeals Tribunal Act 1975 and that statute to 'b) of it a a) does not contain a provision corressonding to 3. tT oe th ae] t © Complaints Act. Consequently in this case 2t may be open Court to set aside the findinags of the Disczelinary Tribunal on qrounds based upon the sufficiency of the ovorocft before the Teibunal in circumstances other than those faliina within the test propounded in that case. But s.78(b) aces not require the Court to consider afresh the evidence' that was before the Disciplinary Tribunal with a view to determining whether the Court would have come to the same conclusion as the Tribunal had it been hearing the matter in the first instance. The Traibunai 1s the arbiter of disputed auestions of fact. the role 2f this Court being to set aside the decision of the Daiscipiznarv Tribunal only if 1t 1s satisfied that the [ripunal actrd e.qa. without any evidence or any surficient evidence or upon a viow of the facts which could not reasonabiv be entertained, In this 19. regard reference miaht be made to Harris v. The Commissioner of Police (Full Court - 21 Februarv 1984 - unreported). In the present case much depended upon the view which the learned President took as to the credibility of tne witnesses who appeared before him. There was ample evidence upon which he was entitled to act. We are not persuaded that anv 2rrer of law in the extended sense mentioned in s.78(b) or the Complaints Act has been disclosed. What we have said above 1s enough to dispose also of the third question of law which. as worded, the Amended Notices of Appeal raise. The around, however. seeks support from Chamberlain v. R. (supra) as giving this Court in this proceeaind authority to review findings of the Disciplinary Tribunal bv a vardstick "unsafe and unsatisfactorv". There was reference in that case to the iurisdiction of this Court in wuts appellate yurisdiction on appeals from convictions ain a terlal on indictment. Here the Court 15 exercising original iurisdiction, not in respect of a conviction, not frcm the veraict in a trial of a criminal offence on indictment. and not from a verdict in respect of a criminal offence. In our opinion the decision in Chamberlain as to verdicts which mav pe thoudht to be "unsafe and unsatisfactorv", or "unsafe and danderous" does not apply to the consideration bv this Court of an "appeal" from the Federal Police Disciplinary Tribunal. In anv event. we are weli satisfied from our consideration of the reasons of the learned 20. President that no question arises here of his conclusions being "unsafe" or "unsatisfactory" or "dandgerous". We propose that these appeals be dismissed with costs. ' cerhfy that this and the iq traced: g pages are a true copy of the ~ = 3 for Judgment herein of his Honour * . Justcs McGregor and hin Heneee Mr dvsnce Neaves. Anne Ccatt Associate Dated: 10 duly 1784