1% IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL REASONS FOR DECISION 24 AUGUST 1982 _ tannins ee MUDGMENT No. £23... A 7PQR- Prevveel, Gnoeaececene ) No. 3 of 1982 i THE COMMISSIONER OF POLICE against SENIOR CONSTABLE KENNETH PETER WEBECK IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 KELLY, J. By notice dated 31 May 1982 the Commissioner of Police of the Australian Federal Police instituted proceedings pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations against Senior Constable Kenneth Peter Webeck (hereinafter called the "officer") alleging that contrary to the provisions of para.18(1)(d) of those Regulations he had been guilty of improper conduct in his official capacity in that he on 21 May 1981 at Lyneham in the Australian Capital Territory, whilst effecting the arrest of Glen Michael O'Callaghan, assaulted the said Glen Michael O'Callaghan by throwing him against his motor vehicle. It became clear during the course of evidence before me that the proceedings had been instituted as a result of action taken by the Commonwealth Ombudsman following a complaint made to him by Mr. O'Callaghan. The notice of institution of proceedings was served upon the officer on 9 June 1982. The Commissioner thought fit to determine that the proceedings should be heard and determined by this Tribunal and issued the appropriate notice under sub-s.67(2) of the Complaints (Australian Federal Police) Act 1981 (the "Act"). On 16 July 1982 I determined that I should constitute the Tribunal for the purpose of hearing the proceedings and subsequently gave directions that the hearing should take place on 11 August 1982. When the matter came on to be heard on that day the Commissioner was represented by Mr. A. Colefax: while the officer was represented by Mr. S. Wilcox. No doubt the delay between the alleged breach by the officer and the institution of proceedings by the Commissioner is to be explained by the fact that the Act was assented to on 9 April -2- 1981 but did not come into operation until 1 May 1982. Mr. O'Callaghan gave evidence that on the afternoon of 21 May 1981 he went to the home of a friend, Ian Bryant, where he stayed for a while. Subsequently he and Mr. Bryant bought some bottles of beer and drank them at a place described as "the horse paddocks". Mr. O'Callaghan drank four large bottles of beer. It is not clear how many Mr. Bryant drank but I am satisfied that by dusk that evening, at the time of the events with which I am concerned, each was showing the effects of the consumption of alcohol in approximately the same degree. Late in the afternoon of that day Mr. O'Callaghan and Mr. Bryant decided to go to the home of a friend, Rohan Bolas, at Dunsmore Street, Lyneham. Mr. O'Callaghan drove and arrived in the street outside Mr. Bolas? home at about dusk. Dunsmore Street, which is the Canberra end of the Barton Highway, runs in a general north-westerly direction from Northbourne Avenue and Mr. Bolas' home is situated some short distance from the junction of the two streets and on the north-eastern side of Dunsmore Street. Mr. O'Callaghan attempted to stop his car on the south-western side of Dunsmore Street almost opposite the entrance to the Bolas home. In doing so he pulled to the side of the road but apparently misjudged the width of the gravel shoulder for the car slid down a wet grassed embankment adjacent to the gravel shoulder into a ditch some 3'-4' deep. I am satisfied on all the evidence that the car slid completely off the gravel shoulder and that Mr. O'Callaghan was mistaken when he gave evidence that the two offside wheels of the car remained on the gravel shoulder. Mr. Bryant left the car -3- to go to Mr. Bolas' home. Mr. O'Callaghan dozed and when almost asleep was awakened by the officer who was mounted on a motorcycle. Mr. O'Callaghan said that when asked by the officer what he was going to do he replied that he was going to sleep. He enquired whether he had done anything wrong and the officer replied that there had been an accident reported. Someone came to a nearby fence described by Mr. O'Callaghan as "a couple of feet away". The officer left the car and went over to talk to that person. Mr. O'Callaghan then got out of the car and walked across the road intending to go home. As he walked he took out a cigarette but found that he had no means of lighting it. He returned to his car, looked unsuccessfully for a box of matches or a cigarette lighter and then used the car lighter. He gave evidence that he then got out of the car and was standing by it puffing on his cigarette. He described what happened then in the following words, "A police officer walked round - I did not see where he was - came around and threw me against the car and told me. to stay there. ... I had my back to him, he sort of grabbed me on the shoulder and turned me around and threw me against the car. I am not sure where his hands were or how he threw me." He said that Mr. Bryant then came upon the scene and said to the officer, "Keep your hands off" or words to that effect. Mr. Bryant described the incident. He was on the opposite side of the roadway near the beginning of the driveway into the Bolas residence. He had become aware of the presence of a police officer in the vicinity and had earlier seen Mr. O'Callaghan on the north-eastern side of Dunsmore Street. As he returned to Dunsmore Street he saw that Mr. O'Callaghan was back in his car. He said that he then saw the officer grab Mr. O'Callaghan and throw him against the car. He said that immediately prior to this Mr. O'Callaghan had been "facing in his car". By this I understood him to have meant that Mr. O'Callaghan was standing outside of the car but reaching inside it with a good deal of his body within the car or, at the least, part of his body within the car. In any event Mr. Bryant gave evidence that at the moment he grabbed Mr. O'Callaghan the officer was behind him. He rejected a suggestion in cross-examination that Mr. O'Callaghan hit the car backwards and stated that he went frontwards. He elaborated on this by saying that Mr. O'Callaghan would have had a very sore back if he went back on the car. He did not see Mr. O'Callaghan turned round by the officer before he was thrown against the car. He gave no evidence of having said "Keep your hands off" or words to that effect to the officer. Mr. Rohan Bolas gave evidence about the incident. He said that he saw Mr. O'Callaghan at traffic control lights at the junction of Dunsmore Street and Northbourne Avenue and then saw him swing round and come back towards his car. I quote from his evidence:- "He [Mr. O'Callaghan] walked back across the Barton Highway [Dunsmore Street] to his car to get a light for his cigarette and got into the car to get one and the policeman came across to the car and they spoke and the policeman got the keys of the car and walked off back to his motorbike and Glen wanted the keys back. The policeman would not give them back and that is Pvhen we walked over and I think that is when he got pushed up against the car. I walked from the top of our driveway across to where the car was. ... I saw the policeman grab Mr. O'Callaghan frontwards and push him backwards into the car." Asked what part of Mr. O'Callaghan's body came into contact with the car, he replied, "Lower back". 'There was then, he -5- said, a lot of argument. He described Mr. Bryant as drunk and Mr. O'Callaghan's condition as about the same. He meant that each was obviously affected by liquor but not totally drunk. He fixed the time when the officer pushed Mr. O'Callaghan as that when Mr. O'Callaghan got back to the car and got in and then got out to get the keys of his car back. He agreed that at the time Mr. O'Callaghan was pushed he was standing on the wet grassy slope. Under cross-examination he maintained that the officer had grabbed Mr. O'Callaghan and then forcefully pushed him. He thought that the officer had grabbed Mr. O'Callaghan by the arms before he pushed him. Mr., Bolas asked the officer for the keys of Mr. O'Callaghan's car. As far as Mr. Bolas could recall he was given the keys without comment. Following a radio call made by the officer for assistance, other police officers arrived on the s¢ene. Mr. O'Callaghan was put in the back of a police car and taken away. Whether the officer gave the keys to Mr. O'Callaghan's car to Mr. Bolas before or after the other police arrived is not clear. Mr. Bolas could recall that Mr. O'Callaghan said, "Look what you have done to my car". This is a reference to some minor damage done to the right hand side of Mr. O'Callaghan's car. I am satisfied that the damage was caused when Mr. O'Callaghan came into contact with the car during the course of the incident. Although minor, the damage would have cost nearly $200 to repair. Miss Kate Bolas gave evidence that she, too, saw Mr. O'Callaghan near the north-eastern side of Dunsmore Street and then saw him turn around to walk back to his car. She gave evidence that she saw him reach the car and lean inside it and then appear to ask the officer for something. She -6- described Mr. O'Callaghan as being on the driver's side of the car talking to the officer who was above him. They were facing each other. The officer would have been on top of the slope. She said that Mr. O'Callaghan was grabbed and was pushed really hard against the car. She said that the officer then went to his motorcycle and started radioing. She said that after Mr. O'Callaghan was pushed against the car he started asking the officer what he was going to do about the damage to his car. Other police officers came on the scene and Mr. O'Callaghan was taken away. In a statement made on 10 August 1981 Miss Bolas stated that it was after the officer had given the keys to Mr. Rohan Bolas that the additional police officers arrived. In that statement she described the incident as follows:- "Then both of them started arguing. I couldn't hear the conversation. I just knew they were arguing. I think that's when the policeman grabbed Glen and threw him up against the car. By this time Glen was really angry and started swearing at the policeman about the damage done to his car. ... Glen started to ask the policeman for the keys which he gave to Rohan in the end. Five minutes after that three police cars arrived." On the same day on which she made the statement I have just referred to, Miss Bolas had a conversation with Detective Senior Constable J.A. Davies. That conversation was recorded. I set out hereunder a number of questions and answers from that record:- "Q.5 In your statement you said, 'Then both of them started arguing." Where were they standing at this time? A. Alongside the car, between the Police motor bike and the car. Q.6 You also said, 'I just knew they were arguing.' How did you know they were arguing? A. They were waving their arms around and their voices got louder. Q.7 You also said, "I think that's when the Policeman grabbed Glen and threw him against the car.' Are you able to tell me how the Policeman threw Glen against the car? A. Glen was standing about a foot away from the car. The Policeman grabbed him with both hands by the front of his shirt and pushed him against the front of his car, he then pulled him away from the car and pushed him back into it again. Q.8 Can you tell me what you mean by the statement 'The Policeman didn't seem at all interested in it?! A. Well he just leaned up against his motor bike and looked at Glen. He just didn't seem to care about it. Q.9 In your statement you said, 'he appeared to want to leave.' What gave you that impression? A. Glen said aloud, 'I'm going can I please have my keys.' In a very angry voice it was too." The statement referred to in the questions is clearly that which she had earlier made and to which I have earlier referred. Mrs. Robyn O'Callaghan, the mother of Mr. Glen O'Callaghan, gave evidence. She went to the City Police Station on the evening of 21 May 1981 at about 7.10 p.m. 'here she had a conversation with the officer. First she asked to see Mr. Glen O'Callaghan but he did not wish to see her. The officer returned and after a while took Mrs. O'Callaghan into another room and told her that her son would be charged with drink driving. He then said, "T feel I should tell you that there is a dent in the front right hand mudguard of the car where Glen fell against it." She replied, "It is my belief he was pushed". The officer's -8- reply was, "Fell or pushed, that is how the dent got there". The officer gave evidence that when he arrived in Dunsmore Street on the evening of 21 May 1981 he found Mr. O'Callaghan's car at the bottom of the drain adjacent to the south-western side of Dunsmore Street. He walked down the Slope to the vehicle and saw Mr. O'Callaghan lying in the front seat. As he approached Mr. O'Callaghan sat up. Mr. O'Callaghan told him that he had driven from the Hackett horse paddocks and had parked the vehicle on the side of the road and the vehicle had slid down the road into the drain. When Mr. O'Callaghan got out of the vehicle the officer noticed that he was swaying on his feet, his balance was not good and his eyes were watery and bloodshot. He appeared to have been asleep. His speech was slurred. The officer informed Mr. O'Callaghan that he believed that he had been drinking intoxicating liquor. In the belief that Mr. O'Callaghan was going to try to drive the car out of the ditch, the officer removed the keys from the ignition and told Mr. O'Callaghan that he was not going anywhere. Mr. O'Callaghan asked for the return of the keys. The officer explained to him that they would not be handed back. Mr. O'Callaghan reiterated his request and, according to the officer, threatened to hit him if the keys were not returned. The keys were not returned and the officer left the car and had a conversation with a man who appeared on the other side of the fence which is the north- eastern boundary of Yowani Golf Club and to which Mr. O'Callaghan made reference in his evidence.as I have indicated above. The officer agreed that Mr. O'Callaghan returned to his car, opened the door and got into the seat and probably reached for something. He went on to say that Mr. O'Callaghan got. out of the car and stood by its side facing him. Both were -9- standing very close to the car, Mr. O'Callaghan's back was about a foot from it. Mr. O'Callaghan continued to demand the return of his keys threatening to hit the officer if they were not returned. The officer was then asked in chief whether Mr. O'Callaghan did anything apparently in an attempt to get the keys back. He replied, "He did reach to grab hold of me, I presume, to get the keys out of my pocket." He stated that Mr. O'Callaghan had placed one hand on his (the officer's) chest and "pushed in a forward motion on my chest". He appeared to slide or slip on the grass. He was leaning forward but slipping backwards pushing the officer away and, appearing to over react, just fell back on to the car. The officer demonstrated what he had described. He denied that he assaulted Mr. O'Callaghan as alleged. Senior Constable Meckie gave evidence on behalf of the officer. He was one of the policemen who had come to the scene in response to the officer's call for assistance. He gave evidence that Mr. O'Callaghan had to be assisted into the car, resisting slightly. He gave evidence that during the course of the journey to the police station Mr. O'Callaghan subjected him and his fellow officers to non-stop abuse and insults. They were referred to as "grunters" and "pigs". He made, apparently on a number of occasions, comments about the strong smell of bacon inside the vehicle. He moved his arms around. This caused no danger to the driver but Mr. O'Callaghan was warned. At the police station when all had alighted Mr. O'Callaghan looked at Senior Constable Meckie, a stockily built man, and said to him, "Well, you are about my size, I'll fight you" -10- and removed his shirt. Senior Constable Meckie summed up Mr. O'Callaghan's behaviour as protesting and insulting. No cross-examination was directed to Senior Constable Meckie to suggest that he was mistaken in anything he said and, in addition, Constables Dainer and Brown who had also been involved in the assistance rendered to the officer were in Court and available to give evidence if required. Mr. Colefax did not wish either of them to be available for cross-examination. Mr. O'Callaghan was charged with driving with the prescribed content of alcohol (he had a reading of .111 milligrams of alcohol per 100 millilitres of blood instead of the permissible .08 milligrams per 100 millilitres). Additionally he was charged with malicious damage arising out of an incident where the handle of a door in the police station was wrenched off. Although he pleaded guilty to both charges and therefore must be taken to have admitted, as a matter of law, that he had deliberately wrenched the door handle off the door, he denied on oath before me that he had done it deliberately. Two other passages from Mr. O'Callaghan's evidence seem significant as throwing light on the question posed to me. He was questioned about his emotional state during the journey to the police station. I quote the relevant passage:- "You were angry all the way, I suggest to you, to the police station? ---I was angry from the time I sten the dint in my car till I left the Civic police station. It was the sight of the dint in your car that made you angry?---Yes. You were not angry before that?---No. © O -ll- You had to be forcibly placed into a police car and wedged between two police officers, did you not, at Dunsmore Street?---No, they sat me in the car, I seen the dint, I tried to get out, they closed the door on my leg, and then one police officer came in the front and told me to blow in this." The second passage, given during the course of his examination in chief, was as follows:- "Did you at any stage threaten Constable Webeck?---No. Did you at any stage push Constable Webeck?--- No, I never laid a hand on hin. Can you tell his Honour what, if anything, happened to the keys of your car?---The last I seen of them they were in the ignition of the car. They were left there when I was asleep. Did you see what happened to them subsequently? ---I did not even notice they were gone." As is evident from what I have said and quoted above, there were inconsistencies between the descriptions of the incident given by the witnesses called on behalf of the Commissioner. In particular the accounts given by Mr. and Miss Bolas differed markedly from those given by Mr. Bryant and Mr. O'Callaghan. Again, the account given by Mr. O'Callaghan differed markedly from that given by Mr. Bryant. The accounts given by Mr. and Miss Bolas did not differ markedly from each other although Miss Bolas in August 1981 described two distinct assaults. I was unable to accept as accurate the evidence given by Mr. O'Callaghan and Mr. Bryant. I am satisfied that each was well affected by liquor. Mr. O'Callaghan described himself as "pretty tipsy" and certainly his behaviour in the police car and after he got out of the car was inconsistent with rational and reasonably courteous behaviour. I am satisfied that he did ask the officer for the return of his -12- keys, having no doubt noticed their absence when he went to get the car lighter. Surprisingly, he seems not to have appreciated the fact that an investigation was likely to be carried out into his driving after consuming alcohol. I think this shows that his general behaviour at the time was irrational. I am also satisfied on the whole of the evidence including such little guidance as I obtained from the demeanour of the witnesses that the incident at the car took place very much as the officer said it did. He appeared to me to be telling the truth but, more importantly, I could see no reason whatever why he should do to Mr. O'Callaghan what he is said to have done. It was not as though Mr. O'Callaghan was attempting to run away. Certainly he had walked off once but had then returned and by all accounts was in the immediate vicinity of his car when the incident occurred. There was nothing in the evidence to suggest that he was about to depart again. Indeed, I am satisfied that he was heatedly demanding the return of the car keys. In all the circumstances I am not satisfied that the charge against the officer has been made out. I reach this conclusion on the basis that the onus of proof undertaken by the Commissioner was to satisfy the Tribunal on the balance of probabilities, bearing in mind the gravity of the charge made against the officer. Scanes v. Wilson, (1974) 22 F.L.R. 262 at pp.268-9. In fairness to the officer, I think it should be said that I am not satisfied either that the damage caused to Mr. O'Callaghan's 'car was not caused in the manner described by the officer. -13- At the same time I think it fair to say, too, that I thought Mr. and Miss Bolas were doing their best to tell the truth. I think that they misinterpreted what they heard and saw. In particular, I think that it was likely that the noise caused by Mr. O'Callaghan's collision with his car may have led them to a conclusion as to its cause which was not warranted. It is further to be noted that Mr. O'Callaghan did not see the dent in his car until after he had been seated in the police car. I add, too, that I accepted the evidence given by Mrs. O'Callaghan concerning the conversation which she had with the officer but I do not think that acceptance involves my rejection of the officer's version of events. In all the circumstances I dismiss the proceedings against Senior Constable Webeck. I order that the Commissioner pay his costs of and incident to the proceedings. I trust that the parties will be able to reach agreement on the question of costs but if they cannot I give liberty to apply on the method to be used for their calculation. I certify that this and the 'a the preceding pages are a true copy © Reasons for Bs eon herein of bis Honour KELLY, fresivadr oF Wsrrquad FEDERAD POnice Disc Putty rRiad he, Associate Datedt vt tapout MNS?