IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL REASONS FOR DECISION: 1 SEPTEMBER 1982 ) { ) No. p of 1982 ) ~ ~— THE COMMISSIONER OF POLICE against SERGEANT KOBERT ALEXANDER GEORGE DONALDSON IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 KELLY, J. palatine Heenan On 10 June 1980 the Commissioner of Police of the Australian Federal Police instituted proceedings pursuant to Regulation 19(1) of the. Australian Federal Police (Discipline) Regulations (the "Regulations") against Sergeant Robert Alexander George Donaldson, a member of the Australian Federal Police (hereinafter called the "officer'"), in respect of three alleged breaches of paragraph 18(1)(h) of the Regulations. For reasons into which I need not presently go, the matters did not proceed. On 4 June 1982 fresh proceedings were instituted in respect of the same matters. Each of the notices then issued was clearly defective but I made amendments under s.72 of the Complaints (Australian Federal Police) Act, 1981, (the "Act") without objection from the officer. In the end he was charged with three disciplinary offences. Each charge alleged that he contravened paragraph 18(1) th) of the Regulations by being found guilty by the Supreme Court of the Australian Capital Territory on 2 May 1980 of an offence against a law of the Territory, s.5(1) of the Gun Licence Ordinance 1937, of having in his possession a gun for which he was not the licensee under a gun licence. the notices alleged that the convictions were in relation respectively to - (a) one Lucznik 87.177 calibre air rifle, Serial No. K5421, (b) one Birmingham Small Arms .22 single shot rifle, Serial No. L13578, and (c) one Winchester .22 lever action repeating rifle, Serial No. 185445. During the course of the hearing before me on 10 and 11 August 1982, I stated that I was satistied that the contraventions alleged had been proved. This was effectively conceded by Mr. 1I.J. Higgins appearing on behalf of the officer. The evidence upon which I was so satisfied was a certificate of conviction dated 27 July 1982 given by the Deputy Registrar of the Supreme Court of the Australian Capital Territory and sealed with the Seal of that Court. I heard submissions on penalty from Mr. Higgins and from Ms Vardanega appearing for the Commissioner. As I am required to do by s.67(5) of the Act, I consulted with the duly appointed nominee of the Commissioner as to the appropriate penalty in respect of the proved offences. Following that consultation and because in all the circumstances I was considering as a penalty the reduction of the officer's rank from that of Sergeant to that of Senior Constable, I gave notice to the officer, as required by s.67(7) of the Act, that I was considering that reduction. The notice was served on him on 20 August 1982. I subsequently received from Mr. Higgins, on 24 August 1982, a written statement which the officer wishes me to take into consideration in deciding what penalty I should impose. It seemed to me, following receipt of that statement, that it was desirable that I hear further submissions on the question whether the Tribunal had power to impose no penalty at all even though it was satisfied that a disciplinary offence charged had been proved. I am grateful for the detailed submissions put on this point by the legal representatives of the parties on 26 August 1982. During the course of the hearing the parties directed my attention to what they considered the relevant parts of the transcripts of proceedings before the learned Magistrate who first heard the charges in respect of the weapons and before Lockhart, J. who, sitting as a Judge of the Supreme Court of the Australian Capital Territory, heard the appeals against the learned Magistrate's decisions. Lockhart, J. had the advantage of hearing evidence given by the officer who was cross-examined at length by Mr. R.J. Marr, Q.C. I think it proper to accept and follow (indeed it was not suggested that I do otherwise) the findings of fact made by Lockhart, J. the evidence given in the Court of Petty Sessions on the three charges was treated as evidence on the appeal to the Supreme Court. It was not suggested that any part of the evidence given by the officer either in the Court of Petty Sessions or in the Supreme Court should be considered untrue. I accept that on 20 August 1976 investigating police found on search under a warrant the three rifles referred to above positioned between floor joists in the under floor area of the officer's house. Two of the rifles were partly wrapped in an orange cloth. One of the .22 calibre rifles was fitted with a silencer. The officer admitted that the weapons were not licensed but refused to say anything further regarding his possession of them at that time. Lockhart, J. accepted the officer's evidence as to the way in which the rifles came into his possession. His Honour said, referring first to the air rifle, "The appellant said that it had been in the possession of his father for some time before he died and was then placed in the garage of his mother's home at Ainslie. The appellant has a sister who also lives at Ainslie although in a different house. She has a son who was aged twelve and interested in rifles. His mother (or perhaps his sister) asked the appellant if he would store the rifle so as to get it out of the way of the boy so that he could not use it. The appellant agreed. Hence the rifle came into his possession." He went on, "As to the other two rifles, one being a Birmingham small arms .22 single shot rifle and the other being a Winchester -22 lever action repeating rifle, the appellant said that they were given to him by a woman who was having domestic problems. She told the appellant that her husband was drinking heavily and [she] was afraid to have the rifles in the house. She asked the appellant to store them for her. He took possession of them and put them in his house. They remained in his house until the events of 19 and 20 August 1976. the appellant said that it never occurred to him to have any of the three weapons licenced. He said that he never used them." In the Court of Petty Sessions the officer was asked why he did not report the fact that he had come into possession of the two .22 calibre rifles. He replied, "Repercussions of what action could be taken against him [the woman's husband]. She believed that he was settling down. This only occurred when he was intoxicated to an extent and domestic problems did take place within the house. She preferred that no names were mentioned, that if this happened then the marriage would break up completely." He was then asked two further questions in chief. I set out those questions and the replies:- "If you had reported the fact that you'd been given those rifles what details would you have been required to report?---Certainly the ownership of the rifles - who owned them and what address, the circumstances. That is irrespective of whether you lay a charge?---Yes, I believe so, even of miscellaneous property, I would have to state - I'm not too sure of this whether they were found, lost or what have you - in a book but that wasn't the case." He was not cross-examined on any of the evidence just referred to. It was not until November 1979, during the hearing of the appeal before Lockhart, J., that the officer told anyone in authority the name and business address of the woman -5- who entrusted the rifles to him. Even then the name was given in writing only. Lockhart, J. heard evidence given by a Mr. Morschel. He and the woman worked at the same place. His Honour accepted that in 1975 the woman had had a conversation with Mr. Morschel wherein she said that she had been threatened with some firearms by her husband. Mr. Morschel told her to surrender the weapons. In his view she was having rather severe matrimonial problems. He said that her husband was drinking "a fair bit" and abusing her and that obviously she was very disturbed. the evidence just referred to was accepted by Lockhart, J. as corroborating the evidence of the officer. When the officer gave evidence before Lockhart, J. he was asked what was his purpose in keeping the weapons. He replied, in effect, that he kept the slug gun |the air riflej for safe keeping "to keep it away from [his] nephew and nieces" and the two .22 calibre rifles "for security for a temale". He also gave evidence that when he came into the possession of the three rifles he did not consider that a licence was necessary for them. He said, "I have always thought that one was not required". Lockhart, J. accepted the evidence just referred to. He said, "the appellant gave evidence today which I accept as to his belief or state of mind when the guns came into his possession. In effect what he said was that he, although not adverting then in particular to the Gun Licence Ordinance because of his earlier understanding of it or because of his earlier belief as to what it meant, simply assumed in effect that he was not required to have the guns licensed." When the rifles came into the possession of the officer General Order 83 governed the action to be taken -6- by members of the Australian Capital territory Police Force, of which he was then a member,in connexion with any money, valuables or other property (other than exhibits or prisoners' property) found by, handed to or otherwise coming into the possession of police. Although the order purported to deal generally with property coming into the possession of police, its detailed instructions so far as relevant to this case related only to action to be taken on property handed to policemen by persons who had found it. There were therefore no instructions which met precisely the two situations which faced the officer, the one relating to the air rifle and the other to the two .22 calibre rifles. Nevertheless, as appears from the copy of the order tendered in evidence, it is perfectly clear that a procedure existed for dealing with property which came into the hands of an officer who did not own it. While the procedures laid down did not meet precisely the situations, they nevertheless should have afforded to a senior non-commissioned officer of the Australian Capital Territory Police Force appropriate guidance as to the action he should have taken. No set of orders or instructions can meet every situation which may arise. However, officers who, in the execution of their duty, are faced with a set of circumstances for which no precise guidance is afforded by such orders or instructions, ought to seek the necessary guidance by analogy from orders or instructions having to do with circumstances of a broadly similar character or from their superior officers. Accepting that the officer feared that if he reported that the two .22 calibre rifles had come into his possession further police enquiries might in the end result in injury to -7- the woman or damage to her marriage, it was nevertheless inappropriate for him to keep the rifles without telling anyone in authority over him that he had them. On the material placed before me it is plain that no relevant order or instruction existed to require the officer's superior to communicate the circumstances of the handing over of the rifles to the officer to the woman's husband. It is hardly to be expected that the officer's superior, having been told of that fear, would not have dealt sensibly with the problem to make sure that what the officer feared did not come about, at the same time having due regard to the true ownership of the rifles viewed against the fact that they were apparently not licensed under the Gun Licence Ordinance 1937. Leaving aside the breaches of that Ordinance, I cannot in all the circumstances find that there was anything sinister in the officer's possession of the three rifles. Nevertheless, he tailed, in my opinion, in his perception of what his duty as a Sergeant of Police was. It is true that there is a discretion reposed in police officers in connexion with the performance of their duties. It is a discretion that one expects to see sensibly exercised. It is not appropriate in these reasons to explore the ambit of the discretion or the circumstances in which police officers may exercise properly the discretion or discretions reposed in them. It is sufficient for the purposes of this matter to say that no officer of the former Australian Capital Territory Police Force could have acted and no officer of the Australian Federal Police may act in purported exercise of a discretion reposed in him when the action is contrary -8- to a law of the jurisdiction in which he was or is at the relevant time performing his duty. It follows, therefore, that the officer had no colour of right at the time when he received the rifles to keep them without being the holder of a licence in respect of them, for the provisions of the Gun Licence Ordinance were applicable to him in that regard as to any other citizen. He should have perceived that, whether or no the Gun Licence Ordinance operated in respect of the three rifles, it was his duty, despite his fear earlier referred to, to take action which would have brought to the attention of his superiors the existence of the rifles and the circumstances in which they came into his possession. In assessing penalty it is relevant to consider the scope of the duty of the. officer whose conduct is in question. More is to be expected of a Sergeant of Police than of a newly appointed Constable. A disciplinary offence committed by such a Constable may warrant a minimal penalty or may, in the proper exercise of the Commissioner's discretion, not be the subject of proceedings at all while the same offence committed by a senior non-commissioned officer may well warrant his dismissal. By s.67(3) of the Act the Tribunal when constituted by the President or a Deputy President may, if it finds the officer guilty of breaches of discipline and subject to sub-sections (5) and (7) to which I have already referred, impose on him in respect of the breaches such penalties as it deems fit provided that they are penalties which the Commissioner would have had power to impose upon the officer under the prescribed Regulations if he had heard and determined the -9- proceedings and found the officer guilty of the breaches of discipline. Accordingly in this case the Tribunal has power to (a) reprimand the officer, (b) reduce him in rank, or (c) dismiss him from the Police Force. rhese are the only penalties which the Tribunal may impose in respect of the particular offences. It is not suggested by or on behalf of the Commissioner that the officer should be dismissed from the Australian Federal Police. It is, however, contended that he should be reduced in rank. It has been pointed out that the rank of Sergeant is an important one within the police service requiring the holder to exhibit a number of qualities, not the least of which are dependability, leadership, awareness of his role as a leader of a group, integrity and loyalty. He may be required to induct new members to areas of responsibility, maintain discipline and welfare, supervise work and results obtained by the group under his control, issue and account for specialised equipment, prepare and conduct training programmes and assess and develop subordinates. It is said that he must be a person in whom subordinates have complete faith, based upon the knowledge that he is shown by his diligence, reliability, good conduct and the exercise of common sense, that he deserves their respect and trust. It is said that the circumstances surrounding the disciplinary offences were such that the officer did not measure up to the high standards expected of a Sergeant and that, accordingly, he ought to be reduced in rank. On the other hand, it is submitted on behalf of the -10- officer that the proper course for the Tribunal to take is to impose no penalty at all. Certainly, it is submitted, reduction in rank is in all the circumstances entirely inappropriate. After consideration of the submissions made I take the view that the Tribunal acting with the powers entrusted to the Commissioner in respect of the imposition of penalties for disciplinary offences may not impose no penalty at all. S.67(3) of the Act reads in part:- "Where the Disciplinary Tribunal, in proceedings heard by it in pursuance of sub-section (1) or (2), finds a member guilty of a breach of discipline - (a) if the Tribunal is constituted by the President or a Deputy President - the Tribunal may, subject to sub-sections (S) and (7), impose on the member, in respect of the breach of discipline, such penalty as the Tribunal deems fit, being a penalty that the Commissioner would have had the power to impose upon the member, under the prescribed regulations, in respect of the breach of discipline if the Commissioner had heard and determined the proceedings and found the member guilty of that breach of discipline;" S.68 of the Act provides for appeals from penalties imposed by the Commissioner on a member in respect of a breach of discipline. the member may appeal on the ground that the penalty is unduly severe or unauthorised by law. The Attorney-General may appeal on the ground that the penalty imposed on the member in respect of the breach is inadequate. Thereafter the powers of the Disciplinary Tribunal are set out in s.68(S). It reads:- "The Disciplinary Tribunal constituted by the President or a Deputy President shall hear and determine the appeal and may- (a) affirm the penalty imposed on the member in respect of the breach of discipline; or -ll- (b) set aside the penalty imposed on the member in respect of the breach of discipline and substitute for that penalty such other penalty as the Tribunal deems fit, being a penalty that the Commissioner would have had the power to impose under the prescribed regulations if he had heard the proceedings and had found the member guilty of the breach of discipline." If the Commissioner had power to find guilt but to impose no penalty, the language of s.68(5) is, on an appeal against leniency by the Attorney-General, inappropriate to allow substitution of a penalty when none has been imposed. The Tribunal may "affirm the penalty" or "substitute such other penalty as [it] deems fit" after setting aside that imposed. The appellate power of the Tribunal necessarily postulates imposition of a penalty once the Commissioner finds guilt. It would be odd if the Act made no provision for an appeal by the Attorney-General if the Commissioner exercised a power given him to impose no penalty even though finding the member guilty of the disciplinary offence charged. No specific provision in the Act or Regulations gives power to the Commissioner or Tribunal to dismiss a charge even though the offence is found proved. Regulation 19(1) provides that the Commissioner may, if he thinks fit, institute proceedings against a member in relation to a disciplinary offence. When he is required to consider penalty in respect of such an offence Regulation 22 provides that the Commissioner may impose one of a number of penalties. The distinction between the phrase "may, if he thinks fit" and the word "may" indicates that the Commissioner has the widest discretion in respect of the institution of proceedings but that his discretion in respect of penalties is limited to the choice of which penalty he will impose. I conclude that the word "may" appearing in s.67(3) is to be read as "shall". -]2- Before turning to the detailed submissions as to penalty put on behalf of the officer, I set out in summary form a history of the disciplinary and other proceedings taken against the officer. On 20 May 1976 the officer, then, as I have indicated, a member of the Australian Capital Territory Police Force, was suspended pursuant to s.45(2) of the Police (Disciplinary Provisions) Ordinance 1972 in connexion with a charge of conspiracy laid against him. On 20 August 1976 he was charged with stealing a lapel badge and on 27 August 1976 he was charged with six further offences. These included charges in respect of the unlicensed possession of the three rifles (the "rifle charges"). On 4 February 1977 he was convicted in the Court of Petty Sessions of three offences and in respect of each was fined $30. He was thereupon dismissed by the then Commissioner. On 7 February 1977 he was convicted of the rifle charges. In respect of each he was fined $15. On 3 June 1977 his dismissal was quashed in the Supreme Court of the Australian Capital Territory by Franki, J. (1977) 15 A.C.T.R.39. Suspension continued. An appeal to the Federal Court against the decision of Franki, J. which quashed the dismissal was in turn dismissed, it would appear on 2 February 1978, (1978) 19 A.L.R. 235. Despite his submissions his suspension continued. In April 1978 he successfully sought a separate trial in respect of the conspiracy charge laid against him. On 29 June 1979, more than three years after the proceedings commenced, the officer was acquitted of the conspiracy charge. Thereafter his suspension continued in respect of the other charges. On 9 October 1979 one of the six charges referred to above was dismissed leaving six still to be dealt with. On 2 November 1979 the officer was appointed a member of the Australian Federal Police. He was immediately suspended from duty. On 2 May 1980 the officer's appeal to the Supreme Court of the Australian Capital Territory in respect of the charge laid on 20 August 1976 succeeded as it did in respect of one of the other six charges. His appeal in respect of the rifle charges and one other charge with which I need not concern myself was dismissed. On 3 June 1980 Lockhart, J. imposed penalties in respect of the rifle charges. On 10 June 1980 the Commissioner instituted proceedings in respect of the convictions on the rifle charges. On 11 July 1980 the appellant obtained an order nisi for a writ of prohibition to prevent the continuation and/or hearing of proceedings under the Regulations in respect of the alleged disciplinary offences. At the same time he obtained an order nisi calling upon the respondent Commissioner to show cause why a writ of certiorari should not issue to quash the Commissioner's decision made on 2 November 1979 to suspend him from duty on and from 19 October 1979. In due course the orders nisi were discharged by Davies, J. in the Supreme Court of the Australian Capital Territory. An appeal to the Federal Court failed on 17 August 1981. By that time the Act had been passed and the proceedings instituted on 10 June 1980 were discontinued. The delay between the dismissal of the last appeal and the institution of the fresh disciplinary proceedings on 4 June 1982 is, I think, to be explained by the fact that the Act, which had been assented to on 9 April 1981, was expected to come into force much earlier than it did on 1 May 1982. For well over six years, therefore, the officer has been suspended, admittedly effectively with pay, from the performance of his duties as a police officer. s | ~ 1 rs 7 "14- The delay must have had a serious effect on the officer's career. In the result, it is accepted by the Commissioner that his dismissal from the Australian Federal Police would not have been appropriate. Had he been reduced in rank to, say, a Senior Constable in 1976, he would have had the opportunity to rehabilitate himself and may well by now have attained a rank higher than that which he presently holds. I do not need to speculate on this. It is sufficient, I think, that the possibility is there. It was submitted on behalf of the officer, trenchantly I think, that it is immaterial that the circumstances leading to the delay were not brought about by the Commissioner. the submissions went on, "The allegations that were dismissed were not invited by [the officer] either." It was also submitted on behalf of the officer that he has already received what was described as a de facto punishment by virtue of his suspension from duty and the alleged shifting grounds therefor since 20 May 1976. I do not accept this submission. The delay and its effects have to be taken into account but they do not, in my opinion, constitute a punishment. There is a serious risk that the officer's history since 1976 (and what I have recounted does not by any means cover all of it since one cannot but be aware of civil proceedings taken by him in respect of the happenings of 20 August 1976) may cloud the issue with which I have to deal. In substance that issue is whether, taking due account of all the circumstances, including the nature of the disciplinary offences and the officer's character and record as disclosed by the evidence, it is appropriate to reduce him in rank. 'that his conduct | in respect of the rifles was illegal cannot be questioned. C -15- Despite this, it was accepted by Lockhart, J. that there was nothing sinister in that conduct and nothing placed before me would lead me to a contrary view. In Scanes v. Wilson, (1974) 22 F.L.R. 262, Fox, J. said at p.272, "To answer dishonestly was very wrong, and to be depricated. But in the circumstances what [the appellant Constables] did was understandably human. It would be dangerous to impose on the Police Force a standard in relation to such matters which is very much higher than that observed by the community in general. the conclusion that because of the untrue statements no trust could be reposed in the appellants and no reliance ; could be placed on them properly to perform their duties, seems to me, with respect, to be unsound, and not based on ordinary human experience." In my opinion the officer is to be dealt with because he was found guilty of the three offences with which I am concerned. But it is also to be taken into account that he failed in his perception of what his duty as a Sergeant of Police was. I take into account the testimonials which were put in evidence and I. have regard to his record as a police officer up to 20 May 1976, noting that he was chosen to attend as a representative Australian Police Officer at Expo 67 in Canada. I note, too, that he has once been ; commended for conduct which showed initiative and courage. Even the only reprimand which he had earlier received could be put down to an excess of zeal although, it must be said, that excess showed also some lack of common sense. Although I acknowledge as accurate the submissions put on behalf of the Commissioner concerning the high standards which may properly be demanded of a Sergeant of Police, in the end I am not persuaded that it is appropriate that the officer be reduced in rank. . | « -16- In the material placed before me following the notice given on 20 August 1982, reference was made to the treatment accorded other police officers who had had their conduct considered by Courts. I have not taken that material into account, deeming it inappropriate to do so in the absence of admissions concerning or proof to my reasonable satisfaction of the matters in question. The course adopted in submitting such material is, I think, to be deprecated. In all the circumstances I think the proper penalty is that in respect of each of the three disciplinary offences the officer should be reprimanded. I do not think such a reprimand should be taken into account for the two years for which General Order 6, paragraph 32, of the Australian Federal Police General Orders provides that it may. If the Regulations permitted me to impose what might be described as a mild reprimand I would have done so in each case. But in any event I think some reprimand should have been imposed and this notwithstanding the view I take that I am not permitted by the legislation to do other than impose a penalty. I order formally that in respect of each of the CO) three disciplinary offences of which I have found the officer guilty he be reprimanded. I certify that this and the 15 preceding pages are a true copy of the Reasons for Decision herein of his Honour Mr. Justice Kelly, President of the Federal Police Disciplinary Tribunal. Associate Dated: 1 September 1982 i