re —_ — mnt q- . 5 JUDGMENT No. Pu Boeul wd IN THE FEDERAL POLICE ) No. 6 of 1982 ) DISCIPLINARY TRIBUNAL ) No. 7 of 1982 THE COMMISSIONER OF POLICE against PROTECTIVE SERVICE SENIOR CONSTABLE BARRY DESMOND GANDER THE COMMISSIONER OF POLICE against FIRST CONSTABLE DANNY JOHNSON IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR DECISION MR_J.R.B. NORRIS Q.C. 8 Gctober 1982 Protective Service Senior Constable Barry Desmond Gander has been charged with a disciplinary offence pursuant to paragraph 18(1)(d) of the Australian Federal Police Disciplinary Regulations and First Constable Danny Johnson has been charged with an offence under paragraph 18(1)(b). It is a question of fact as to whether the assault or assaults alleged by Mr Chhotu took place. The onus rests upon the commissioner to satisfy me on the balance of probabilities, subject to this: that I should bear in mind the gravity of the charges made against the officers concerned - Scanes -v- Wilson, 22 FLR 262 at 268/9. I am not so satisfied. Mr Chhotu, I shall refer to him from time to time as the complainant, convinced me that he was a person who was prepared to tamper with the truth if to do so would work to his advantage. That of course is not to say that he necessarily would lie to this tribunal but it does follow that his evidence must be scrutinised with extreme care. There is little corroboration of his allegations. Mr Singh who no doubt because of his own problems adopted a rather disinterested attitude spoke of the complainant: "Looking as though he had been crying and he had a swelling on his left cheek." It is difficult to be impressed with his evidence and I was not impressed by it, especially in the light of inter alia Mr Dickie's observations that there was no sign of injury or of crying. I have no difficulty in accepting Mr Dickie as a person who would make a reliable observation and as a witness of truth. His comment is verified by the observations of Dr Bracken. His was a detailed examination made for a purpose on 17 July. He found some sensitivity to touch but nothing objective. He found no sensitivity in the area of the back of the head other than the area of the right mastoid process. Constable Dawes noted his hand up to his face but saw no sign or marks or tears. Constable Pendlebury at 7:45 p.m. observed slight swelling under the eye and slight abrasion. On the following day at 4:00 p.m. he noted that the swelling had gone down substantially, but he did defer to the observations of doctors. .-/3. Mr Gander and Mr Johnson, both gave evidence. I was not unimpressed with the manner in which both officers gave their evidence, notwithstanding expert but scrupulously fair cross- examination of the officers by Mr Chapple. In the course of this evidence, each officer stated that each had learnt only on 28 July of the fact that Mr Chhotu had made a complaint against each of them. If I accept this evidence, it must follow that the fabric surrounding Mr Chhotu's evidence is substantially destroyed and his total credit put into jeopardy. I have come to the conclusion that the complainant has little credibility and far too little to be accepted. It is only necessary to instance some of the many inconsistencies: his assertion to Mr Dickie of a threat, denied by Mr Dickie as having been said to him; his evidence relating to the phrase "marriage of convenience"; that relating to his answer to question 5 in his record of interview and the answers that he gave on page 38 of the transcript; the allegations of spitting and of his travel within Australia. I find no need for futher elaboration. Mr Gander and Mr Johnson were supported in their evidence that they escorted the three men to the toilets to some extent perhaps by Constable Gordon. Neither he nor Constable Stanton nor Sergeant Chirgwin noticed that day any detainee who appeared to have been crying or who exhibited a swollen cheek. Dr Selecki, called oe e/4, C) on the morning of the last day of the evidence saw Mr Chhotu about 7:00 p.m. on 16 July. The complaints he received were different to those made on the next day to Dr Bracken and were confined to the zygoma and clavicle. He found slight swelling in the area of the right zygoma and concluded that this may have been caused either by it being inflicted or sustained. He found no graze nor signs of haemotoma. Having read the relevant evidence at pages 8, 54 and 65, he concluded on the basis of that evidence that he would have expected more damage than he found. It is noted that he received no complaint of pain in the occipital area or in the stomach. Mr Chapple was most persuasive in submitting that I should differentiate Mr Dickie's observations made half to one hour later after the alleged assault and those of Dr Selecki at about 7:00 p.m. on the 16th, which might be thought to be similar to the observations of Constable Pendlebury about 7:45 on that same evening. What troubles me, however, is that Constable Pendlebury testified to an abrasion seen by no other witness and also on the 17th at about 4:00 p.m. some swelling. This seems to disagree with Dr Bracken and it is to various degrees at variance with Mr Singh's observations. One does then return to the complainant. Of him it is said that having on four occasions in the witness box given substantially the same version of the alleged assault, I should oe /5. accept him. It is in my opinion equally open to think that it was a well memorised concoction. As I have said earlier, I do not accept him. It must, I think, follow that neither Protective Service Senior Constable Gander nor First Constable Danny Johnson can be found to be guilty of a breach of discipline as respectively charged and I so find. I order the commissioner to pay the costs of those officers pursuant to regulation 7 of the Complaints (Australian Federal Police) Regulations. I order that if no agreement on costs between the parties is reached within 14 days, then within 7 days thereafter, each party would forward to the Registrar in the Australian Capital Territory his assessment of costs or, in your case, Mr Chapple, of what you thought it ought to be. J.R.B. NORRIS Q.C. Member