en JUDGMENT No... 282. wl LED FEDERAL POLICE DISCIPLINARY TRIBUNAL ) ) AUSTRALIAN CAPITAL TERRITORY ) No. 2 of 1982 Between = THE COMMISSIONER OF POLICE and DETECTIVE SERGEANT RICHARD THOMAS NINNESS Monday QL NovinBER /4§2. before me 1. REASONS FOR DECISION Detective Sergeant Richard Thomas Ninness appeared charged with the following offences: Pursuant to Paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations that he at Woden in the Australian Capital Territory on 19th February, 1982 was guilty of improper conduct in his official capacity; and Pursuant to Paragraph 18(1)(g) of the Australian Federal Police (Discipline) Regulations that he at Woden in the Australian Capital Territory cn 19th February, 1982 did act in a manner that brought discredit to the reputation of the Australian Federal Police. Miss Honcope on behalf of the Commissioner of the Australian Federal Police indicated that the charge pursuant to paragraph 18(1)(d) was to proceed in the first instance with the charge pursuant to section 18(1)(g) only to proceed in the event there was not a finding in favour of the Commissioner in respect of the first charge. The particulars «-/2. provided in respect of each of the charges was identical in the following terms: "that the said Richard Thomas Ninness on 19th February, 1982 at Woden in the Australian Capital Territory, did by means of intimidation, induce James McKenzie Kirkpatrick to sign a written statement, which said statement James McKenzie Kirkpatrick would not otherwise have signed". Paragraph 18(1)(d) of the Australian Federal Police (Disclipline) Regulations provides as follows: OO A member is guilty of a disciplinary / offence and is subject to punishment in accordance with these Regulations if the member is guilty of disgraceful or improper conduct either in his official capacity cr otherwise. Arete ee Mp os Paragraph 18(1)(g) of the Australian Federal Police (Disclipline) Regulations provides as follows: A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member acts in a manner that brings, or is likely to bring discredit to the reputation of the Australian Federal ~, Police. Co It should be noted that in respect of the charge pursuant to paragraph 18(1)(d) the Commissioner has elected to allege that the Sergeant was acting in his official capacity. Further, in respect of the charge pursuant to paragraph 18(1)(g) the Commissioner has alleged that the actions of the Sergeant did bring discredit to the reputation of the Australian Federal Police. These matters are discussed in detail below. nd aie o00/3, "recta ge: et spam tes ner Pi hen to spent. we bath been The onus of proof to be applied by the Tribunal in respect of such hearings is the civil standard of proof on the balance of probabilities but taking into consideration the seriousness and gravity of the allegation or charge made, the inherent unlikelihood of an occurrence of a given description, or the gravity of consequences following from a particular finding against the Sergeant. - CF Fox J. in Scanes -v- Wilson 1974 22FLR 262 at pages 268 and 269. Such an approach to the onus of proof has been taken in two earlier matters before this Tribunal - CF Kelly J. President in the Commissioner of Police -v- Webeck (Federal | Police Disciplinary Tribunal Number 3 of 1982) 24th August, oe, 1982; and Mr Norris QC Member of the Tribunal in | a, © Commissioner of Police -v- Gander and Johnson (Federal | Police Disciplinary Tribunal Numbers 6 and 7 of 1982) on - 8th October, 1982. : Pat The incident arises from a motor vehicle collision on 19th February, 1982 in Newcastle Street, Fyshwick, A.C.T. aig th eee In the collision a vehicle driven by James Kirkpatrick collided with the rear of a vehicle driven by Britta Ninness, the sister-in-law of Sergeant Ninness. The actual details of the collision are for the present purposes not directly relevant, It is sufficient to say that on evidence before me Mr Kirkpatrick denies any liability in him for the C) accident. Mrs Ninness claims it was not her fault but the fault of Mr Kirkpatrick that the accident occurred. The general location and nature of the accident is set out in the diagram prepared by Mr Kirkpatrick and tendered in this matter and marked Exhibit "C". Photographs of the relevant damage to the vehicles were also tendered and received in _ the hearing. Sergeant Ninness gave sworn evidence that fee eet 2 it MeSH om 20/4, in fact Mr Kirkpatrick made substantial admissions of liability for the accident to him later at the Police Station and also signed a statement admitting civil liability - Exhibit "B". Mr Kirkpatrick indicated that whilst he did admit liability and sign Exhibit "B" he denies some of the statements of admission of liability attributed to him by Sergeant Ninness. These matters are discussed in detail below. Following the accident Mr Kirkpatrick went to the Woden Valley Police Station to report the accident. It is there that Mr Kirkpatrick alleges the present charges arose. *y C) _ The gist of the allegations against Sergeant Ninness is that he stated to Mr Kirkpatrick in a conversation at or outside the Woden Valley Police Station on 19th February, 1982 that if Mr Kirkpatrick did not admit liability for the accident then Sergeant Ninness would have him charged or arrange to have him charged with negligent driving (an offence under the Motor Traffic Ordinance of the Australian Capital Territory). Mr Kirkpatrick claims that in his opinion he was not liable for the accident but nevertheless, to avoid the occurrence of such a charge, he admitted liability to Sergeant Ninness for the accident and subsequently signed | Exhibit "B" stating he was prepared to accept Viability for | OO) damage suffered in the accident to the vehicle driven by | " Mrs Ninness. It is common ground between Sergeant Ninness and Mr Kirkpatrick that there was a conversation concerning the accident in and outside the Woden Valley Police Station on the day in question and no other person was present or : within hearing during the relevant parts of the conversation. There is substantial conflict between the two men as to the tae ne es eee ae) contents of that conversation. wt a Mrs Ninness was at the counter of the reception area at the Woden Valley Police Station in the process of reporting the accident to Senior Constable Van Akker when Mr Kirkpatrick arrived at the Station. Sergeant Ninness who was on duty in charge of Detectives at the Station on that day had earlier noticed his sister-in-law at the counter and had briefly enquired of her the reason for her being there and what had occurred. At that stage he played no part in her reporting of the accident but indicated to her that he would speak to her upstairs later. He further asked Senior Constable Van Akker for Mr Kirkpatrick's name and details etc. and requested him to telephone him when Mr Kirkpatrick had completed his discussion with Senior Constable Van Akker concerning the accident. Senior Constable Van Akker in receiving the two drivers reports of the accident completed an accident form which fis exhibited in this hearing and marked "G". There is a conflict between Senior Constable Van Akker and Mr Kirkpatrick as to what Mr Kirkpatrick admitted concerning his role in the accident. This matter plays some role on the issue of Mr Kirkpatrick's credit and will be discussed in more detail below. When Mrs Ninness had completed her role in the reporting of the accident she went upstairs and over a cup of coffee discussed the accident with Sergeant Ninness. Meanwhile Mr Kirkpatrick was reporting the accident to Constable Van Akker downstairs. Following a phone call from Constable Van Akker Sergeant Ninness proceeded downstairs and spoke to Mr Kirkpatrick. --+/6. There was an initial conversation between the two men in the foyer of the Police Station after which they proceeded to an area in the carpark outside near where the vehicle driven by Mrs Ninness was parked. At this location a longer conversation occurred between the two men. It is the content of the conversations between Sergeant Ninness and Mr Kirkpatrick at this point that is the subject of dispute and conflict in this case. The content of that conversation is discussed in detail below. At the completion of the conversation the Sergeant asked Mr Kirkpatrick to come inside and take a seat in the ; CO foyer and he proceeded upstairs and completed the statement - "a which is Exhibit "B" in the proceedings. The Sergeant then went down to where Mr Kirkpatrick was and asked him to accompany him upstairs. In an upstairs office area the Sergeant presented Exhibit "B" to Mr Kirkpatrick and requested him to sign it. At that stage there was a discussion about the type of car Mrs Ninness was driving. Apparently i the car was a Commodore vehicle but Exhibit "B" had termed | it a Monaro vehicle. It was agreed that no amendment need | be made to the statement. Mr Kirkpatrick then signed the statement which Sergeant Ninness witnessed and Sergeant Ninness requested one of his colleagues, Senior Detective Hepworth as he then was, to sign the statement. Mr Kirkpatrick was Co). then given a copy of the statement and then left the Police 4 Station. There is virtually no dispute over the events set out below. The whole case is resolved over the contents of the conversation that occurred between the two men in the foyer of the Police Station and outside the Police Station in the car park area. . | oee/7. Mr Kirkpatrick states that as he was in the process of leaving the Police Station he only then realised the correlation between Sergeant Ninness' name and the name of Mrs Ninness. Mr Kirkpatrick then returned to him employer's premises and discussed the matter with his employer and his employer's wife. With the encouragement of those persons Mr Kirkpatrick then decided a complaint should be made against Sergeant Ninness for his role in this affair. A number of phone calls and discussions occurred between Mr Kirkpatrick and his employer with senior members of the Australian Federal Police Force. On 23rd February 1982 Mr Kirkpatrick swore a Statutory Declaration which is exhibited in this hearing and that Statutory Declaration was forwarded to the Minister for Administrative Services. From there the matter was investigated and resulted in this hearing. Mr Kirkpatrick gave sworn evidence before me at the hearing and was cross-examined. However, in addition to that in a number of documents he has purported to give a version of the conversation that occurred between himself and Sergeant Ninness on 19th February, 1982 in relation to the accident. Mr Kirkpatrick's first version of that conversation is contained in the Statutory Declaration he swore on 23rd February, 1982 some days after the incident. That Statutory Declaration is Exhibit "D0" in these proceedings. The relevant part of the Statutory Declaration states as follows: +o/8. "When Det. Snr. Sgt. Ninness returned he spoke to me Detective Inspector Whiddett in the presence of Detective Acting Senior Sergeant Snape and his employer's wife; Mrs Margaret Bell Mr Kirkpatrick gave a further version of this particular , near the door, i.e. main entrance, of the Police Station and told me I was lucky that.the damage to the Commodore was not too extensive and when I asked why he said I would be paying for it. When I said that the accident wasn't my fault he said "Oh, yes it was", and took me out to the car park. When outside he said that I had run up the back of the Commodore, and he would have me booked for speeding and negligent driving. When I argued the facts of the accident with him he maintained that I was in the wrong and started quoting what appeared to be parts of the Traffic Act to me. He was most insistent that he was going to have me booked and I would have to go to Court unless I signed a statement that I was liable for the repair of the Commodore. I asked if I could go away and think about it, and he said that unless I signed the statement immediately he would take me back inside and have me charged. Even though I knew the accident had not been my fault I was frightened by what he said and didn't know what to do. He kept on at me, and I agreed to sign the statement." . In a recorded conversation between himself and conversation: "Q47. A. Q48. A. What happened then. While I was giving my details to the uniformed Policeman the man who was with Mrs NINNESS came | up to the desk and wrote my name and address on | a pad. He then told the uniformed policeman that he wanted to see me when the other policeman had finished with me. | What happened then. After I had finished and started to walk out of the Police Station this man who had been with Mrs NINNESS and had taken my particulars came up to me in the foyer and said that I was lucky that the 2/9 q49. Qs50. A. Q5t. A. damage to Mrs NINNESS' car was not too extensive. I asked him why and he said because I would be paying for the repair. I said I won't be because it wasn't my fault, that she had pulled out and merged into my lane. Then he said, No, if you run into the rear it is your fault. What happened then. I tried to indicate the circumstances and show him exactly what happened and he said something about the Traffic Ordinance saying you are obligated to be able to stop on the spot at any intersection. What else was said. Then he asked me what type of insurance I had and I said I had Third Party, Property. Then he said you'll be right, you'll be able to pay for this through your insurance. I said the excess wouldn't go any where near the damage. At this point. he started talking about charging me with negligent driving and took me outside to the rear of the Commodore and he said it is only about one hundred and fifty - to three hundred dollars damage here. You can go to Court to battle it out for negligent driving where you'll be up for lawyers and Court charges or it can end here with you accepting blame. for the damage to the Commodore. He may not have said blame, he may have said responsibility for the accident. What happened then. He just said it was up to me to make a decision. I said can I go away and think it over, but he said, No he wanted a decision now. I was there for about three or four minutes trying to work it all out. He shrugged his shoulders and began to walk back inside. I said after him, "Looks like I'm up for a bit of money, I haven't really got much choice. He then said, "Come inside and take a seat". I returned with him to the foyer of the Police Station while he went upstairs. He was gone for about ten or fifteen minutes then called me from the top of the stairs to come up. Then in his office he said to me, "Sign this and I'11 give you three quotes and you can pick out the cheapest". He pointed to a typed sheet of paper on the desk and handed me a biro. . ---/10. Beg) de atthe 10. Q52. What did this document consist of. A. I saw that it was a statement in my name admitting liability for the accident, that there was a place for me to sign and places for two witnesses". In a further recorded conversation with Detective Inspector Whiddett in the presence of Acting Senior Sergeant Snape and his employer Mr Paul Bell on 23rd March, 1982 (a document which is Exhibit "F" in the present proceedings) Detective Sergeant Ninness' version of the conversation was in fact put in detail to Mr Kirkpatrick and he gave varying answers in relation to the various parts of that conversation which mostly took the form of denials. It is interesting to compare his statements as to various parts of Detective Sergeant Ninness' alleged conversation with the same questions and answers in cross-examination by Mr Wilcox at this hearing. At this stage I do not propose to go to that record of interview in total detail. In evidence before me at the hearing of this matter Mr Kirkpatrick in examination in chief again gave a version of the relevant conversation between he and the Detective Sergeant. That part of the evidence occurs at pages 3a, 4 and 5 of the transcript of evidence as follows: "What happened after that?---I was leaving the police station, and halfway through the door, I met the plain clothes person, and he told me I was lucky that - - - Try and tell the tribunal to the best of your recollection what he actually said in so many words?---He told me I.was lucky the damage was not too extensive to the Commodore. oe-/11. | TI i. What did you say?---"Why?". And he said, "Because you will be paying for it". And I Said it was not my fault. He said, "You ran up the rear of her, that is your fault*, I explained the situation, and to the best of my knowledge, the way it occurred, with my hands, etcetera, to give an indication of what happened. What happened next?---He then started saying things about approaching intersection laws, quoting some sort of police statement or whatever law says that when you approach an intersection you are supposed tc be able to stop on the spot. he asked me about insurance, what sort of insurance I had. I said I had insurance. He said, "You'll be right. You'l? be able to pay for it through your insurance". I told him my insurance would not even cover that and he said something to the effect that the damages were not all that bad. _ Was all this conversation taking place inside the police station?---Yes, I was moving towards the door. I was not standing right in one spot all the time. He then suggested we went out and had a look at the rear of the Commodore. Who was it that suggested you go out?---Mr Ninness, which I did not know by that stage. Sorry, could you repeat that?---Which I did not know by that stage. So this person in plain clothes - - -?---Yes,.. We- went out in the car park and stood to the rear of the Commodore. .He mentioned charging me with negtigent driving as I was not able to- stop at the intersection, running into her.. Can you try to remember what he said to you, to the best of your recollection? Are there any particular words you can remember him saying to you, even if you cannot remember it al1l?---Something to the effect of charging me with negligent driving, while we were standing at the rear of the Commodore, and said, "If you don't accept liability for the damage you could be charged with negligent driving unless it can be settled right now". ooe/12. ~ Ty] 12. What did you say?---I asked if I could go away and think about it for a while, and he said to me, no, he wanted an answer right at that time. What did you say to that?---I thought about it for a while and I said to him, "It looks like I'm up for a bit of money. I haven't got much choice in the matter". And so he went away and he told me to sit down at the foot of the stairs. He went upstairs. Sorry, you missed a link there. You were in the car park. Where did you go from the car park?--- Back inside the police station, where I sat down again where I was sitting before when I filled out the accident report. He went upstairs. I was sitting there for about 10 or 15 minutes and he called me upstairs and then showed me a typed out statement. What happened in relation to that statement?---He i said, "I will get three quotes for you and we i will mail it to you. You can pick out the ib cheapest one". So I signed the statement and I: he witnessed it. He called over another - - - "Do you remember what he said after you had signed the statement? I think you said he witnessed : the statement. Did anybody else witness the A statement?---Yes.. He called over another person who was sitting over the other side of the room. He called them over to ask then if they would witness the statement for him. We a the Do you remember what he said about the person?--- Just something to the effect, "Could you.please : just come over and witness this?" He never CD really said anything else at all." Sergean Ninness gave sworn evidence as to his version of the relevant conversation at pages 42 to 45 inclusive of the transcript. The relevant part of that evidence in examination in chief is as follows: 13. What did you say?---I introduced myself as Rick Ninness, You say you introduced yourself as Rick Ninness. Can you just say what you said, if you remember? ---To the best of my knowledge I said, "I'm Rick Ninness. I'm acting on behalf of my brother, Doug Ninness, who is the owner of the motor vehicle". And did you ask hin to come somewhere with you? ---Yes. I then asked him to come out in front of the police station. Did you notice out there the damage to the Hoiden Commodore which was your brother's vehicle? ---Yes, I did. Did you ask Mr Kirkpatrick whether he had sustained any injury in the accident?---Yes, I believe I did. What did he say?---No, he told me he had not received any injury. Did you ask him how much damage had been caused? ~---Yes. Sorry, to his vehicle. And what did he say?---He told me.that he had received front end damage to his vehicle which was not extensive. I think you got some formal particulars from him, did you?---Yes, I did. By the way, all this time of course you were dressed in plain clothes?---Yes. I think at no state did you mention to him that you were a police officer?---I did not. Even in your introduction?---I did not. I think he told you that he was doing a message for his boss at the time of the accident?---Yes, he did. 14. And you asked him how.the accident happened and he gave you his version of how it happened? ---He did. By reference to your notes could you just tell His Worship what you asked Mr Kirkpatrick and what he answered to you.in response?---I said, "What speed were you travelling at as you approached the intersection?" He said, "I am not sure". I said, "As you approached the intersection of Newcastle Street and Barrier Street did you see the Commodore which you collided with?" He said, "Yes. It was crossing from the left to the right lane". I said, "How far back were you at this stage?" He said, "I am not sure, but I thought it was going to keep going on Newcastle Street". I said, "Did you see either the right or left indicator were on the Commodore sedan?" He said, "The right one was on", I said, "What did you think it meant by the right hand indicator being on?" He said "I thought she was just changing lanes". I said, "Did you apply your brakes before you hit the rear of the Commodore?" He said, "Yes". I said, "Did your vehicle leave skid marks on the roadway in Newcastle Street?" He said, "Yes". I said, "Do you feel these skidmarks indicate that you were exceeding the speed limit in Newcastle Street?" He said, "Yes". I said, "Do you feel that you were travelling too fast to avoid a collision with the rear of the Commodore?" He said, "Yes". I said, "Was any traffic in the left hand.lane as you approached the rear of the car you collided with?" He said, "No, I did not see any". I said, "Why didn't you take evasive action by pulling into the left lane?" He said, "I thought I could pull up in time but she was going too slow". I said, "Do you know that you should approach an intersection slow enough that if a dangerous situation occurs you are able to pull up prior to a collision?". He said, "Yes, I suppose so". I said, "Do you feel the speed you were travelling at was safe enough considering you were approaching an intersection on your right?" He said, "I suppose I was going a bit fast". I said, "Do you feel that the lady who was driving the Holden caused the accident in any way?" He said, "Only because whe was going too slow making the right hand turn". oe ef 15. i oerigintiadbe Fad Ad nay a tee tae 15. I said, "What do you feel was the main contributing factor of the accident?" He said, "I suppose I was going a bit too fast". I said, "Do you accept the fact that you are responsible for the repairs of the Holden?" He said, "Yes", I said, "Do you know any panel beaters?" He said, "No, not really. How much damage do you think there.is?" I said, "I can't say how much would be involved... It might be.a couple of hundred, it might be a bit more. I don't know". He said, "Will I have to go to Court about this?" I said, "As I have told you, it will be up to the investigating uniformed policeman but civilly I feel there will be action taken to pay for damages to the Holden", I said, "Are you prepered to sign a statement to the effect that you are prepared to accept liability for damages caused to the Holden?" He said, "Yes". I said, "In that statement I will make it that you are supplied with three independant panel beater quotes which entitles you to your quctes prior to the repairs being carried out". Do you agree to this?" He said, "Yes". I said, "Just wait here or you can come in and wait in the foyer while I go upstairs and type out a short statement to the effect that you are prepared to accept liability". I then went upstairs to the CIB and typed out a short statement in relation to liability being accepted by Mr Kirkpatrick in relation to the accident." In respect of most of his evidence in chief as to the conversation Sergeant Ninness gave evidence by reference to handwritten notes that he stated he prepared a short time after the conversation was completed in an effort to record them in case his brother may need them in any civil action. In respect to his version of the conversation given in the examination in chief I formed the impression that the Sergeant was completely unshaken in cross-examination as to that version of events. Further, in substance that version of the conversation is identical with the Sergeant's written version of the conversation contained in his answer to a specific directive by the investigating Detective Inspector Whiddett. That document oe / 16. 16. is Exhibit "0" in the present proceedings and there is no need to go to it in detail but the relevant parts of the document that relate to the specific conversation are paragraphs 9-14 inclusive on pages 3-6. The particulars provided in respect of both charges require the Commissioner to prove that by means of intimidation the Sergeant did induce Mr Kirkpatrick to sign the written statement Exhibit "B", a statement he would not of otherwise signed. The verb "intimidate" is defined in the Concise Oxford Dictionary as; "to inspire with fear especially in order to influence conduct". In view of the serious nature and context of the present offences the Commissioner must prove that the Sergeant either by conscious statement or conduct deliberately sought to overbear the mind and decision of Mr Kirkpatrick with a view of inducing him to sign the statement admitting liability and further that except for that act of intimidation Mr Kirkpatrick would not have signed such a statement. I disagree with the submission made on behalf of the Commissioner by Miss Honcope that intimidation could be established if Mr Kirkpatrick misinterpreted or wrongly implied that Sergeant Ninness would charge him with negligent driving if he did not admit liability and if he did not sign the requisite statement admitting liability, without it being shown that the Sergeant had deliberately intended that his conduct or statement intimidate Mr Kirkpatrick. ° The manner in which the particulars have been framed require the Commissioner to prove that the intimidation had the effect of causing Mr Kirkpatrick to sign the statement and further that except for such oe /17. 17. intimidation no such statement would have been signed by him. It would not be sufficient for it to be proved | that Mr Kirkpatrick was intimidated into orally admitting liability. The charge alleges that the intimidation was operative and inducing Mr Kirkpatrick at the time when he signed the statement admitting liability. Mr Kirkpatrick's evidence as to when and in what context in the conversation Sergeant Ninness made the alleged intimidation is equivocal. In his initial version of events contained in the Statutory Oeclaration Mr Kirkpatrick clearly indicated that the alleged intimidation was made directly at the time when he was required to sign the statement. This version : ; however is in complete conflict with his statement at ) © page 18 of the transcript and cross examination that no such intimidation was made directly in conjunction with a statement or request by the Sergeant that he sign a statement admitting liability. Putting aside the problems for Mr Kirkpatrick's credit in such a conflict, the Commissioner may still be able to establish the charge if he could show that during the oral conversation the alleged intimidation was made and caused Mr Kirkpatrick bd x 3 to orally admit liability and such intimidation continued i to effect and induce Mr Kirkpatrick right up until the time 3 that he in fact signed the statement admitting liability. 4 The intimidation and its induced effect, namely the signing | ben of the statement, need not be simultaneous but the intimidation must still be having its effect on the mind and will of Mr Kirkpatrick. Of course, the Commissioner must additionally prove that the only reason that Mr Kirkpatrick signed the statement was the effect of the alleged intimidation. 18. A number of specific matters need to be considered as to Mr Kirkpatrick's credit, motivation, recollection | | and reliability in respect to the contents of the disputed conversation. 1. It is obvious from his very first version of that conversation in the Statutory. Declaration of 23rd February, 1982 that Mr Kirkpatrick did not attempt to recall. or record the exact words of the conversation. 2. Mr Kirkpatrick has given_a number of varying versions of the same conversation. 3. Senior Constable Van Akker has stated in evidence that Mr Kirkpatrick admitted that he collided with the rear of the other » C) vehicle as it was preparing to make a right ~~ hand turn. The Senior Constable further : indicated that he put Mrs Ninness' version ' : to Mr Kirkpatrick and that Mr Kirkpatrick : ; basically agreed with that version except ® that he disputed that he was travelling at high speed. I have'no reason to doubt the veracity or accuracy of Senior Constable Van Akker's evidence and it means that. substantially Mr Kirkpatrick bad made an admission of fact that may give rise to liability before any conversation between he and Sergeant Ninness had occurred. Further it was suggested in the second record of interview dated 23rd March, 1982 that Mr Kirkpatrick had conceded to Sergeant.McEvoy that he had been able to put his version of the accident to Senior Constable Van Akker. Although his employer, Paul Bell, who was present ' during this interview made an attempt to , explain away that concession. (See page 5 Question 47 of that record of. interview.) All of these matters give | rise to inference that perhaps Mr Kirkpatrick may have made some substantial concessions | i of fact and liability prior to any conversation with Sergeant Ninness. 0/19, en 5. 19. Under cross-examination Mr Kirkpatrick vacillated when Sergeant Ninness' version of the conversation was put to him. In many areas he changed his ground between positive denial, uncertainty and ultimately on some occasions a_ concession that various statements may have been made by either party. The most critical conversation in the case revolves around whether Sergeant Ninness specifically stated that if Mr Kirkpatrick did not admit liability the Sergeant would charge or arrange to.have him charged with negligent driving. Mr Kirkpatrick could not recall the exact words the Sergeant used at this point but indicated that the Sergeant "implied" such a thing but then stated that such words were in fact used (see cross-examination pages 16, 17 and 18). Mr Kirkpatrick conceded (page.16) that he may have asked if he would have to go to . Court and conceded Sergeant Ninness may have replied "as I have told you, it will be up to the_investigation uniformed policeman, .. but civilly, I feel there will be action taken to pay for damages to the Holden. Mr Kirkpatrick conceded that the Sergeant did not specifically state that he would charge him (Kirkpatrick) with negligent driving if he did not sign the statement admitting liability (see page 18). Mr Kirkpatrick's cross-examination on this issue.was not convincing and in places outright evasive and is in direct conflict with his initial statement in the Statutory Declaration (see above) on this issue. These are only a few isolated examples in the cross-examination of Mr Kirkpatrick. Even allowing for his age and 'inexperience as a witness I have grave reservations about his performance under cross-examination as to the contents of this disputed conversation. It appears the complaint was made at the instigation and with the encouragement. of Mr Kirkpatrick's-employers (see page 20). Further, I observed Mrs Bell to be clearly prompting the witness as to an answer in cross-examination (see the incident recorded at pages 20 and 21 of the transcript). As 22/20. 20. Mr Kirkpatrick was obviously in the course of his employment although driving his own. private vehicle there is some obvious motive for an employer in these circumstances to be concerned about a statement by Mr Kirkpatrick admitting liability. 6. Sergeant Ninness has sworn that he introduced himself as Rick Ninness and stated that he was acting on his brother's behalf and did not mention at that stage that he was a police officer. Mr Kirkpatrick denies that this occurred. However, if Mr Kirkpatrick is accurate it is indeed strange why Mr Kirkpatrick would continue to be subjected to what he says was an intimidation by a person who he definitely didn't know was a police officer and a person whom if he was a police officer had no obvious interest in what was a minor road traffic accident. This is a critical matter.on Mr Kirkpatrick's credit even allowing for his relative youth and inexperience. I am aware of the necessity for a Court or Tribunal to be careful in comparing the weight of an experienced "professional" police witness with that of a young inexperienced lay witness (see the comments in this connection of Fox J. in Bierkowski -v- Pearson 1971 I8FLR 110). After carefully considering the evidence, the Commissioner fails to satisfy me on the relevant onus of proof (see above) that Mr Kirkpatrick's version of the conversation is a reliable, accurate one. Specifically I cannot be satisfied Sergeant Ninness stated that if Mr Kirkpatrick failed to make an admission of liability for the accident either orally or in writing he (Ninness) would charge or arrange to have him charged with negligent driving. I am not satisfied that such a clear and o--/2). Ke wR dtl gine Big AA ta bbe te Wg beer isk te 21. conscious threat occurred. For reasons I have indicated above, it does not assist the Commissioner to establish that Mr Kirkpatrick truthfully misinterpreted the situation to the contrary. I am not satisfied that there was any intimidation within the plain meaning of the word. If the Commissioner does not establish that the charges must fail on the facts. Mr Wilcox on behalf of Sergeant Ninness advanced a number of legal arguments in respect of the charges and particulars brought. In respect of the charge pursuant to paragraph 18(1)(d) he submitted that the Commissioner has alleged the act to have occurred in the Sergeant's official capacity and consequently must prove same. This particular offence can be committed either in a member's official capacity or otherwise. If the Commissioner seeks to charge and allege official capacity that is an element that must be proved. In this particular case for the reasons advanced by Mr Wilcox at pages 63-65 of the transcript in my view it is quite obvious that the Commissioner cannot establish that the actions of Sergeant Ninness concerning Mr Kirkpatrick can in any way come within the category of his official capacity. I know of no direct authority defining the term that would assist. I make that observation purely upon the plain language of the regulation. The ; mere fact that a member of the Police Force does. something his hours of duty does not automatically mean that that act would be categorised as being in his official capacity. Putting aside the factual decision I have made in this case, the charge pursuant to paragraph 18(1)(d) would have failed in any event as the Commissioner would not have established that the acts complained of occurred in the official capacity of the member in question. No application was made by .. o0e/22, 22. Counsel for the Commissioner to make any amendment to the particulars of the charge. In respect of the charge pursuant to paragraph 18(1)(g) of the Regulations, Mr Wilcox submitted that the legislature intended the element of "official capacity" to also be required to be proved for an offence under this paragraph. I disagree with that submission. In other parts of the Regulations where offences are created qualifying words or elements such as "in the course of his duty", "at all times", "during his hours of duty", "in the performance of his duties", "either in his official capacity or otherwise" are used in respect of those specific offences. It seems to me that the legislature did not intend such a restriction to exist in respect of the offence under paragraph 18(1)(g) of the Regulations but rather an offence under that Section would apply to a member of the Police Force at alt times that he remained a member of the Police Force. The offence under paragraph 18(1)(g) can occur where the member acts in a manner that brings discredit to the reputation of the Australian Federal Police or where the member acts in a manner that is likely to bring discredit to the reputation of the Australian Federal Police. In this case the Commissioner has elected to charge Sergeant Ninness with acting in a manner that brings discredit to the reputation of the Australian Federal Police. No application to amend the particulars of the charge was made by Counsel for the Commissioner. Mr Wilcox submitted that the Tribunal would need to have actual evidence that the alleged conduct of Sergeant Ninness in his dealings col fe ap Say OES He Sh tye ene Beenie te cng \ 23. with Mr Kirkpatrick did actually bring discredit to the | reputation of the Australian Federal Police. Whilst such evidence may be admissable I am not of the view that such evidence is necessarily required. The Tribunal in my view is entitled in such a case to draw inferences as to the nature and effect of such alleged conduct and reach a decision on the relevant onus of proof as to whether such conduct would in fact bring discredit to the reputation of the Australian Federal Police. It goes without saying that if the Commissioner had charged conduct "likely to bring discredit to the reputation of the Australian Federal Police" the task of proving such an offence would indeed be an easier one. I reject Mr Wilcox submission that the charge pursuant to this paragraph would be dismissed on those grounds. Although the two charges brought by the Commissioner in this case are under different paragraphs the particulars required to be proved are in fact identical. Consequently, the findings of fact I have made in this case as to the particulars are fatal to the success of both charges. I dismiss both charges against Sergeant Ninness. I order that the Commissioner pay the costs of and incidental to the proceedings incurred by Sergeant Ninness. It is hoped | that the parties will be able to reach agreement on the quantum and question of costs but failing such agreement I give liberty to apply in respect of costs. R.A. CAHILL, S.M. Re ee ee ee