JUDGMENT No. ... LAP 982 | IN THE FEDERAL POLICE ) ) No. 4 of 1982 DISCIPLINARY TRIBUNAL _ ) THE COMMISSIONER OF POLICE against SENIOR CONSTABLE JOHN GERRARD ALLAN DECISTION Mr J.R.B. Norris Q.C. (Member) oe TRIBUNAL DATE : 17 November 1982 THE TRIBUNAL DECIDES THAT: 1. Senior Constable John Gerrard Allan is guilty:- (a) of each breach of discipline alleged in the notices dated 31 July 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bear the following identification numbers:- AFP : 1/8283 AFP : 2/8283 AFP : 3/8283 AFP : 4/8283 AFP : 5/8283 and; (b) of the breach of discipline alleged in the notice dated 13 August 1982 signed by the Deputy Commissioner of Police pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP : 11/8283. 2. The proceedings be remitted to the Commissioner for the imposition of a penalty on Senior Constable John Gerrard Allan in respect of the said breaches of discipline. t oir R.B. NORRIS Q.C. " Member J. ( CO) a IN THE FEDERAL POLICE ) ) No. 5 of 1982 DISCIPLINARY TRIBUNAL ) TRIBUNAL DATE THE COMMISSIONER OF POLICE against DETECTIVE SENIOR CONSTABLE PETER JOHN HARDCASTLE DECISTION Mr J.R.B. Norris Q.C. (Member) 17 November 1982 THE TRIBUNAL DECIDES THAT: 1. Detective Senior Constable Peter John Hardcastle is guilty of each breach of discipline alleged in the notices dated 31 July 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bear the following identification numbers:- AFP : 6/8283 AFP : 7/8283 AFP : 8/8283 AFP : 9/8283 AFP : 10/8283 The proceedings be remitted to the Commissioner for the imposition of a penalty on Detective Senior Constable Peter John Hardcastle in respect of the said breaches of discipline. §.R.B. NORRIS Q.C. L. Member IN THE FEDERAL POLICE ) No. 4 of 1982 ) DISCIPLINARY TRIBUNAL ) No. 5 of 1982 THE COMMISSIONER OF POLICE against SENIOR CONSTABLE JOHN GERRARD ALLAN THE COMMISSIONER OF POLICE against DETECTIVE SENIOR CONSTABLE PETER JOHN HARDCASTLE IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR DECISION MR J.R.B. NORRIS Q.C. 17 November 1982 Detective Senior Constable John Gerrard Allan has been charged with a number of offences involving allegations of assault on various members of the community and Detective Senior Constable Peter John Hardcastle has been charged in respect of such allegations with being knowingly concerned in the commission of the said assaults. Onus in respect of all these charges is the civil onus of proof, that is, on the balance of probabilities, bearing in mind however the gravity of the charges against the officers concerned (Scanes v Wilson 22 FLR 262 at 268 and 269). In all the circumstances, I am satisfied, having regard to that onus, that the charges against both officers have been substantiated. The issue is one of credibility. I have had the benefit of observing all those who gave evidence and of forming my own conclusions in regard to their truthfulness. JI can only say that I accept the evidence of the young men who gave evidence in respect of allegations which they made against the officers concerned. Mr Dalton impressed me as somebody who was genuinely trying to remember; Mr Griffiths appeared to me to be telling the truth; Mr Morris appeared again to me to be sincerely aggrieved by the 'events; Mr Clark I found to be truthful and intelligent and some- what astounded that police officers would behave in the manner which he, inter alia, alleged; Mr Clark and Mr Tigwell both impressed me as witnesses of truth. I cannot accept the evidence of the two officers as credible. It is true that there are to be found variations in the evidence of the young men but it would be open to grave criticism if it were otherwise. Of course their recollections will differ and their recall of what they have actually seen will differ, but "this does not suggest to me that they or any of them are endeavouring to mislead this Tribunal. I was impressed with their account, or their respective accounts, of the events that followed the alleged incidents and I refer particularly to discussions which took place in the house at Hackett. They were concerned not so much to discuss the events that happened as to discuss what they could do about those events. They had learned of the existence of the Ombudsman, some of them in the course of their taxi journey from Civic to Hackett that evening. .../3. I cannot accept the evidence that these young men all went back to the police station voluntarily, even though a number of them no longer sought to make any issue as to the fact that the persons who had, as it were, accosted them were police officers. I cannot accept that they were separated and two at least of them placed in separate rooms if not for the purpose of intimidation. Neither officer could advance any reason at all for that happening. If the sole purpose of the return to the police station was for the (oF fteers concerned to provide evidence of their identity, this @ would have taken but a matter of minutes. One ponders then to determine why these young men were there for such a relatively long period of time, having regard to the nature of the so-called exercise and why they were interrogated as to their names, addresses, occupations and so on. This all leads back to the suspicion of intimidation. The conclusion that I have come to is that the young men felt compelled to go to the police station and that the events that they alleged there happened in fact did happen, although perhaps the ( ) degree of violence might have been somewhat less than has been suggested. It has puzzled me that both officers talked of their reaction to the conduct of the young people, and in particular it seems they were offended and/or concerned by the fact that the broken glass was being in general terms, kicked around. Constable Hardcastle refers to this at page 178, and Constable Allan, at page 159. This seems to have been their stated reason if not for approaching oe 4, . the young people, at least later for remonstrating with them about their conduct. It is perhaps unfortunate that no cross-examination was directed in respect of this allegation, and in other circumstances it might have made my task more difficult, but in the circumstances, having regard to the view that I have formed of the witnesses, I have no real problem in coming to a conclusion without necessarily reaching a view as to whether this did or did not take place. I do not believe it necessary to sift through the evidence in detail in view of the conclusions that I have come to, but I find that all the allegations of assault have been sustained and I find further the allegations of being knowingly concerned in them have been proved having regard to the authorities on this aspect of law - Mallan v Lee, 80 CLR, 198; Walsh v Sainsbury, 36 CLR, 464. I do not ignore the evidence of Sergeant Bowerman. It has been submitted that if I accept Sergeant Bowerman, then that is an end to the allegations that immediately on arrival at the second floor of the police station, some of the young men were ordered to and did lie upon the floor. I do not think this follows of necessity. It was a long while ago and memory dims. It is quite possible that Sergeant Bowerman remained in the vicinity for but a few, perhaps very few minutes, and that his departure went unnoticed if the young men were being spoken to collectively by one of the police officers who had brought them there, and that they were not immediately in the strict temporal sense ordered to lie down, but rather after the passing of some even though few minutes. ..-/5. As I understand it, the charges against Mr Allan are those which are separately set out in exhibit J, and those against Mr Hardcastle are separately set out in exhibit K. I find Mr Allan guilty of the charges set out in exhibit J and Mr Hardcastle guilty of those set out in exhibit K. J.R"¢B. NORRIS Q.C. Member