, JUDGMENT No. sm Zot. IF Cc W_O POLICE - Federal Police Disciplinary Tribunal - search warrants - improper conduct - whether necessary to prove that member charged had knowingly acted improperly - carelessness - whether member careless in respect to the swearing of an information Heard together with O'Connell v Palmer, No. SG 47 of 1994. To be read in conjunction with the reasons for judgment in that matter. Australian Federal Police (Discipline) Regulations, r18(1)(c) and r18(1)(d) No. SG 47 of 1994 PETER JOHN SWEENY v MICHAEL J. PALMER IN HIS CAPACITY AS COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE RECEIVED Coram: von Doussa J. O'Loughlin J. 28 NOV 1994 Branson J. FEDERAL COURT OF Place: Adelaide A TOP AL 28 November 1994 REGISTRY OUR' s SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION On appeal from the Federal Police Disciplinary Tribunal constituted by Mr Michael David QC No. SG 47 of 1994 BETWEEN: R_ JOHN SWEENY Applicant - and - MICHAEL J. PALMER IN HIS CA S_ COMMISSIO F OLIC AUSTRALI DERAL POLICE Respondent MINUTES ORDER CORAM: von Doussa J. O'Loughlin J. Branson J. PLACE: Adelaide DATE: 28 November 1994 THE COURT ORDERS THAT: The appeal be dismissed with costs. Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION On appeal from the Federal Police Disciplinary Tribunal constituted by Mr Michael David QC No. SG 47 of 1994 PETER JOHN SWEENY Applicant - and - HA J. ALM CAPACTTY AS COMMISSIONER OF Cc US POLICE Respondent ONS FOR JUDG CORAM: von Doussa J. O'Loughlin J. Branson J. PLACE: Adelaide DATE: 28 November 1994 The Court: This matter was heard together with O'Connell v Palmer. The Amended Notice of Appeal raises the same questions of law as were identified in the Amended Notice of Appeal in that matter. These reasons should be read with the reasons delivered in that matter. The issue of the correct standard of proof to be applied by the Tribunal is dealt with in the reasons for decision in O'Connell v Palmer. The Tribunal in this case found the applicant guilty of two of the five charges laid against him. The first was a charge pursuant to regulation 18(1)(d) of the Discipline Regulations alleging improper conduct in his official capacity. It was agreed at the hearing before this Court that the Tribunal had rightly treated this charge as relating to the applicant's conduct in obtaining a so-called search warrant over the telephone. The second was a charge pursuant to regulation 18(1)(c) of the Discipline Regulations alleging carelessness in the discharge of his duties in relation to information provided in a sworn information relied upon in relation to a search warrant. These two charges arose out of the same operation which resulted in charges being laid against Sgt 0O'Connell. They relate to incidents which occurred later than the events outlined in the reasons for decision in O'Connell v Palmer. After the entry by Sgt O'Connell and others of Unit 1/29 Military Road, West Beach it became apparent that a mistake had been made in identifying the premises which the suspects earlier under surveillance had entered. It was at about the time that the mistake became apparent that the applicant arrived at the unit with the search warrant obtained by him pursuant to section 10 of the Crimes Act, 1914. The warrant authorised a search of Unit 1 only. Additional information obtained from the occupant of Unit 1 and by telephone from the landlord of the units created in the minds of the police officers involved in the operation the belief that the suspects earlier under surveillance had in fact entered Unit 3/29 Military Road, West Beach. Sgt Sweeny telephoned Mr Rooney, the Justice of the Peace who had granted the search warrant and, in the words of the Tribunal:- "informed him that the situation supporting the issue of the warrant was as previously submitted by him except that they had the wrong flat number and he therefore sought permission from Mr Rooney to enter upon and search the premises of Flat 3." Mr Rooney purported to authorise such an entry and it was made. Subsequently, and apparently in conformity with an undertaking given by him to Mr Rooney over the telephone, the applicant swore a further information intended to support the purported authority to enter Unit 3. The information sworn by him was identical to that earlier sworn except that the reference to Unit 1 was changed to Unit 3. Nothing was included in the information as to the actual process by which the suspicion with respect to Unit 3, as opposed to Unit 1, was formed. As to the first charge it is argued on behalf of the applicant that the Tribunal erred as a matter of law in finding that the applicant's seeking of a search warrant over the telephone was improper when it had found that the applicant "genuinely believed he had the power to apply for a phone warrant." Plainly a search warrant cannot be obtained over the telephone in circumstances in which information on oath is not available upon which the Justice of the Peace could be satisfied that there is reasonable ground for forming the requisite suspicion (see s.10 of the Crimes Act). There was no such information on oath with respect to Unit 3 when the applicant sought the approval of the Justice of the Peace for Unit 3 to be entered and searched. The relevance of subjective belief as to the propriety of conduct to a charge of being guilty of improper conduct in an official capacity is considered in the reasons for decision of O'Connell v Palmer. We there held that it was not an element of such offence that the person charged should knowingly have acted improperly. The Tribunal found that a "police officer should not be in such a state of ignorance whereby he even attempts to obtain a search warrant in these circumstances when the proper method is go strictly and carefully set out in Section 10 of the Crimes Act." The applicant's Amended Notice of Appeal does not seek to challenge the sufficiency of the evidence with respect to this finding of fact. Having regard to this finding of fact it was, in our view, reasonably open to the Tribunal to conclude that the applicant was guilty of improper conduct in his official capacity. Before leaving this count it is necessary to note that the relevant notification, which is difficult to comprehend, alleges that the applicant was "knowingly concerned in the unlawful entry and search of premises at Unit 3/29 Military Road, West Beach" in that, in effect, he knew that he had not satisfied the requirements of section 10 of the Crimes Act with respect to the warrant. The reference to "knowingly concerned" appears to reflect language from section 18(2) of the Discipline Regulations which is in the following terms:- "A member or staff 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." It appears from the reasons of the Tribunal, and Mr Barrett, counsel for the applicant did not suggest otherwise, that the matter was treated before the Tribunal as one in which the applicant was under charge as a principal pursuant to regulation 18(1)(d) of the Discipline Regulations. Mr Barrett frankly conceded that he placed no weight before the Tribunal on the words appearing in the notification "were knowingly concerned". In the circumstances it is now too late for the applicant to seek to place weight upon them for the purpose of having the nature of the charge altered from that which was accepted before the Tribunal. As to the second charge of which the applicant was found guilty by the Tribunal, the applicant contends that the Justice was given by the second sworn information all of the material necessary to found the requisite belief. Certainly the second information could have been seen by a Justice of the Peace as sufficient to found the belief required by section 10 of the Crimes Act for the grant of a search warrant. The real issue, however, is whether the applicant was careless in making such a minimal change to the wording of the earlier affidavit before swearing 1t as a new information. The answer to this question lies in whether he reasonably believed that Unit 3 was identified as the likely location of heroin by the means set out in the new information, or whether at the time that he swore this information he was aware of the actual means by which Unit 3 had been so identified. The evidence given by the applicant before the Tribunal was to the following effect:- (a) that when he arrived at 29 Military Road, West Beach on the night in question he was told by a member of the surveillance team "they're not in Unit 1, they're in Unit 3"; (b) that he sought no further information before he telephoned Mr Rooney; and (c) that subsequently he had discussions with the landlord of the units which reinforced the information which he had earlier attained from the surveillance officer that the suspects were likely to be in Unit 3. The applicant conceded in answer to a question from Mr David QC, who constituted the Tribunal in this case, that the information contained in paragraphs 20 and 21 of the second sworn information was not accurate. These paragraphs refer to surveillance revealing that one of the suspects was seen to go to Unit 3 and enter the premises using a key. The first sworn information had included an identical statement except that the Unit number was in that case given as Unit l. The applicant further conceded that although he had told Mr Rooney the true situation over the telephone he should have set out the true position in his second sworn information. As the Tribunal pointed out in its reasons for decision there is a certain unreality about this charge because the follow up paper work being performed by the applicant concerned a warrant that was unlawful anyway and should not have been obtained over the telephone. Nevertheless as the applicant had given an undertaking to the Justice to swear a further information to support the purported authority to enter Unit 3, he was acting in discharge of his duties when complying with that undertaking. In the circumstances we consider that it was reasonably open to the Tribunal to conclude that the applicant was careless in the discharge of his duties in respect to the swearing of the second information. The appeal is dismissed with costs. Counsel for the Applicant Solicitors for the Applicant Counsel for the Respondent Solicitors for the Respondent Date of Hearing Date of Judgment I certify that this and the - preceding pages are a true copy of the reasons for judgment herein of the Court. Associate: E/i hk Date: Ze Nove mse" ey : Mr G F Barrett : Duncan and Hannon : Mr T Howe : Australian Government Solicitor 14 November 1994 28 November 1994