THE PRESIDENT . 6 DECEMBER 1982 CANBERRA, A.C.T. THE TRIBUNAL ORDERS JHAT: JUDGMENT No. .: ; NT No. ERE af whhhr. IN THE FEDERAL POLICE ) "one } DISCIPLINARY TRIBUNAL ) No. 10 of 1982 ) SYDNEY REGISIRY ) BETWEEN: ROBERT JOHN TEBBET Appellant AND: THE COMMISSIONER OF POLICE Respondent ORDERS Amended 23 December 1982 fo The appeal be upheld. In lieu of the penalty of dismissal from the Australian Federal Police Force imposed by the Commissioner of Police ., | Senior Constable R.J. Tebbet be reduced in rank to that of First Constable, the reduction in rank to take effect forthwith (i.e. from 6 December 1982). IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL No. 9 of 1982 SYDNEY REGISTRY | BETWEEN: KENNETH ANTHONY SCHNEIDERS Appellant AND: THE COMMISSIONER OF POLICE Respondent ORDERS Amended 23 December 1982 THE PRES] DENT 6 DECEMBER 1982 CANBERRA, A.C. 1. THE TRIBUNAL ORDERS THAT: 1. 2. The appeal be upheld. In lieu of the penalty of dismissal from the Australian Federal Police Force imposed by the Commissioner of Police the annual rate of salary of Protective Service Constable kK. A. Schneiders be reduced to an amount per annum equal to that payable to a Protective Service Constable who has just completed one vear's service in that rank, the reduction to take effect forthwith (i.e. from 6 December 1982). \y IN THE FEDERAL POLICE ) . ) DISCIPLINARY TRIBUNAL ) No. 8 of 1982 ) SYDNEY REGISTRY ) BETWEEN: MICHAEL LAUGHTON HENRY Appellant AND: THE COMMISSIONER OF POLICE Respondent ORDERS THE PRESIDENT 6 DECEMBER 1982 CANBERRA, A.C.T. THE TRIBUNAL ORDERS THAT: 1. The appeal be dismissed. 2. The dismissal of Protective Service Senior Constable M.L. Henry from the Australian Federal Police Force take effect forthwith. IN 'THE FEDERAL POLICE ) ) DISCIPLINARY TRIBUNAL ) ) SYDNEY REGISTRY ) BETWEEN : AND: REASONS FOR DECISION: 6 DECEMBER 1982 No. 10 of 1982 ROBERT JOHN TEBBET Appellant THE COMMISSIONER OF POLICE Respondent KELLY, J. IN THE FEDERAL POLICE ) ) DISCIPLINARY TRIBUNAL ) J SYDNEY REGISTRY ) BETWEEN: AND: REASONS FOR DECISION: 6 DECEMBER 1982 No. 9 of 1982 KENNETH ANTHONY SCHNEIDERS Appellant THE COMMISSIONER OF POLICE Respondent KELLY, J. IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL No. 8 of 1982 SYDNEY REGISTRY BETWEEN: MICHAEL LAUGHTON HENRY Appellant AND: THE COMMISSIONER OF POLICE Respondent REASONS FOR DECISION: KELLY, J. 6 DECEMBER 1982 On 10, 11 and 12 December 1980, Protective Service Senior Constable R.J. Tebbet, Protective Service Constable First Class M.L. Henry and Protective Service Constables K.A. Schneiders and R.J. Gale, all then members of the Protective Service Component of the Australian Federal Police, were part of the element of that Component charged with the duty of maintaining the security of the Commonwealth Munitions Filling Factory at St. Marys near Sydney. On 10 December 1980 Senior Constable Tebbet was the non-commissioned officer (N.C.O.) in charge of the 2 p.m. to 10 p.m. shift while Constable First Class Henry was the N.C.0O. in charge of the 10 p.m. to 6 a.m. (11 December 1980) shift. Constable Schneiders was one of the two constables who with Senior Constable Tebbet made up the 2 p.m. to 10 p.m. shift while Constable Gale formed part of the 10 p.m. to 6 a.m. shift. It seems that Constable Schneiders was rostered to complete the personnel of the 10 p.m. to 6 a.m. shift, at least from 10 p.m. to 12 midnight. What matters for the purposes of this appeal is that there were present on the station at :2 p.m. on 10 December 1980 Senior Constable Tebbet, Constable First Class Henry and Constable Schneiders. Constable Gale should have been present. He was not. I take up the story as related by Protective Service Sergeant W. Talbot. At approximately 11.20 p.m. on 10 December 1980 Sergeant Talbot, who exercised a roving supervisory role over stations in the area which included the Munitions Filling Factory at St. Marys, arrived at that station. As he entered . the gate he noticed Constable First Class Henry in the Police Office and Constable Gale at the driver's door of his private vehicle parked adjacent to the Police Office. Sergeant Talbot parked his vehicle, acknowledged Constable Gale's presence and entered the Police Office where he spoke with Constable First Class Henry. He asked, "What are two members doinghere at the station at this time of the shift?" Constable First Class Henry replied, "Well, Constable Gale did not get here until 22.50 hours [10.50 p.m.]. When I came on shift Senior Constable R. Tebbet passed a message to me that Constable Gale would be late reporting for duty tonight. He has been here for a half hour and I can't get him to go on patrol." Sergeant Talbot said, "What time did Constable Gale sign on?" Constable First Class Henry replied, "2200 hours [10 p.m.J but he was not here then." Sergeant Talbot then asked Constable Gale to step into the Sergeant's office so that he might speak to him about his still being at the station one hour and 20 minutes after he allegedly signed on for duty. Constable Gale entered that office and was seated. During the subsequent conversation he denied that he had arrived at the station for duty at approximately 10.50 p.m. He claimed that he had signed on at 10 p.m. in accordance with the notation in the Attendance Book. Asked by Sergeant Talbot what he was doing at the Police Office at 11.20 p.m., he stated that he was collecting his meal from the vehicle. As the conversation progressed Sergeant Talbot suggested that Constable Gale might have a drinking problem. Constable Gale agreed that Sergeant Talbot might be right. Sergeant Talbot then told Constable Gale that -3- under the circumstances he proposed to recommend that Constable Gale be transferred. As Constable Gale stood up to leave he passed close to Sergeant Talbot who noted that his breath smelt strongly of alcohol. He asked Constable Gale whether he was capable of driving a vehicle. Constable Gale assured him that he was. Sergeant Talbot ordered him to leave the Office and commence patrolling. Constable Gale left. After Constable Gale left Sergeant Talbot had another conversation with Constable First Class Henry during which Constable First Class Henry again assured him that Constable Gale had not arrived for duty until 10.50 p.m. At about 11.45 p.m. Constable Herbertson arrived to commence duty, obviously to take over from Constable Schneiders. In his statement which was tendered by counsel for the Commissioner of Police without objection by counsel for the three appellants, Sergeant Talbot said that his reason for attending the station at an unusual time [11.20 p.m.] was that during his previous visit at 2.15 a.m. on 10 December 1980 he was about to leave when Constable First Class Henry called him aside to tell him that he had been having trouble with Constable Gale. Constable First Class Henry said that Constable Gale intended to go to the Rooty Hill R.S.L. Club on the evening of 10 December 1980 with a group including some members from the St. Marys station. Constable First Class Henry was apprehensive that Constable Gale would come on shift at 10 p.m. after that visit and requested that Sergeant Talbot should attend at the St. Marys station as soon as possible after the commencement of the 10 p.m. shift. -4- There is no detailed evidence of what happened next morning between Sergeant Talbot and his superior, Inspector Casey, but from Sergeant Talbot's evidence I draw a number of inferences which seem to me to be open on that evidence and in all the circumstances. I am satisfied that on the morning of 11 December 1980 Sergeant Talbot reported to Inspector Casey that Constable Gale had arrived late for duty on the evening before and that he also recommended to Inspector Casey that Constable Gale should be transferred from the St. Marys station. I am also satisfied that sometime during the morning of 11 December 1980, Inspector Casey sought a report on the time of Constable Gale's arrival for duty the evening before. Shortly after midnight on Friday, 12 December 1980, Sergeant Talbot attended at the St. Marys station to collect reports from Constable First Class Henry and Constable Gale. When at the station he had a conversation with Constable First Class Henry. In his statement of 12 December 1980, admitted without objection, Sergeant Talbot reported the subsequent events as follows:- "[Henry] stated that he had received a phone call from Senior Constable R. TEBBET, at approximately 13.30 hours Thursday, 11th December, 1980. During this conversation TEBBET allegedly told HENRY, he was submitting a report to the effect that he had sighted GALE, in the Police Office, St. Marys Station at 22.00 hours on Wednesday, 10th December, 1980. TEBBETT, went on that Constable K. SCHNEIDERS, was submitting a report to that effect also. TEBBET, suggested that HENRY, do the same. HENRY, went on that he had made out the report to Inspector CASEY, as suggested by TEBBET, that GALE had commenced duty at 22.00 hours. I said: 'Mick! You requested my assistance in this matter, made certain allegations against GALE, last night knowing that I -S- would act on your information and now you do this to me.' He said: 'What else could I do? After all I have to work and live with these blokes. You don't. You're in town and don't see them. Anyway, you won't have to wait long, GALE, will resign. I feel lousy and would resign myself only I have a family and need the money.' I turned around and pointed to my back. I said: 'Would you like to pull the knife out of my back?' HENRY, made no comment. I collected the reports and left the Station." In a subsequent statement made on 19 October 1981, Sergeant Talbot recorded again the incident of the telephone call between Tebbet and Henry in the following words:- "Whilst there First Constable Henry said to me:- "At approximately half past one today I received a call from Bob TEBBET. He said that Inspector CASEY was calling for reports as to the time Bob GALE commenced duty on the night of 10 December. He went on to say that GALE, SCHNEIDERS and himself were going to state that GALE was present at the change of shift and signed on at 10 p.m. I was told to say the same thing which was GALE commenced work at 10 o'clock.' " There is no material difference between the report made by Sergeant Talbot on 12 December 1980 and his statement made on 19 October 1981 except that in the earlier version of the conversation between Tebbet and Henry it is said that Tebbet suggested that Henry do the same and in the later version Henry is recorded as having said "I was told to say the same thing which was Gale commenced work at 10 o'clock". I accepted Sergeant Talbot as a witness of truth. Indeed his truthfulness and conduct seem entirely vindicated by events. However, I prefer what he said in his report of -6- 12 December 1980 concerning the telephone conversation between Tebbet and Henry to the version given in the interview in October 1981. I prefer the earlier version because it was made almost contemporaneously with the events in question. The later version does not argue dishonesty on Sergeant Talbot's part, merely, in my view, a mistaken interpretation. In his report of 11 December 1980 made to the Officer in Charge, Eastern Division, Constable Gale stated that, "On the tenth of December, 1980, I attended my rostered shift, being the 10 to 6 shift at 9.55pm. ... About 11.20pm I returned to base, to close the windows of my vehicle and to pick up my dinner, which I had forgot to take with me. At that time, Sergeant TALBOT arrived and asked me into the office. Sergeant TALBOT asked what time I arrived at work. I said I arrived at 9.55pm. He then instructed me to resume patrols, which I did." On the same day Constable First Class Henry reported to the same officer, "T save to report that I was the Shift N.C.O. of u 10/6 shift 10th/1llth December 1980 at ti \ustralian Federal Police Station at the Si.arys Munitions Filling Factory. Members of the shift were Constables R.GALE AND K. SCHNEIDERS who were present with myself at 10.00pm at the commencement of that shift." Senior Constable Tebbet reported, "I concluded my shift at 10.00p.m. on the 10th December 1980, and upon conclusion of my duties I noted that P/S. Constable GALE. R. was in attendance at the Police Office. Submitted upon the request of A/Insp. SWINTON. A.H. for information." Constable Schneiders reported, "Just before I was due to leave at 10.00 p.m. for my hourly tour of the area, I noted that P.S. Constable GALE. R. was in attendance at the Police Office. submitted upon the request of A/Insp. A. SWINTON for your information." At Sergeant Talbot's request, the incident was investigated. On 19 March 1981 Acting Inspector Bradley reported to the Officer in Charge, Eastern Division. The investigation carried out seems to have been perfunctory. It is clear that Acting Inspector Bradley had available to him the report made by Sergeant Talbot on 12 December 1980 as well as the four statements from which I have just quoted. He made, as I find, no inquiry of Sergeant Talbot or of Senior Constable Tebbet. I do not think it necessary to decide whether he interviewed Constables Schneiders and Gale although I rather doubt that he did. The only officer whom I can be certain he interviewed concerning the whole matter was Constable First Class Henry who denied the conversation he had had with Sergeant Talbot about Gale. In the event, Acting Inspector Bradley dismissed the matter as a "non-event" which should have been dealt with entirely at station level. One other incident ought to be recorded. Shortly after Christmas 1980 Sergeant Talbot on a routine visit to St. Marys Station saw Constable First Class Henry again. Henry approached him and said, "Sorry about the Gale affair. I owe you one." Sergeant Talbot replied, "Yes, Mick, and I'll collect." I am satisfied that that incident took place. Following representations made by Sergeant Talbot a detailed and thorough investigation was carried out. This brought to light the facts and, in particular, that Senior Constable Tebbet, Constable First Class Henry and Constables Schneiders.and Gale had made false reports concerning Gale's attendance on the evening of 10 December 1980 at St. Marys Station. Part of the successful investigation consisted of interviews with the three appellants on 22 October 1981 and 21 January 1982. The investigating officers were Chief Inspector Burrows and Acting Inspector Halmarick. When interviewed in October 1981, Constable First Class Henry denied that he had requested Sergeant Talbot's assistance in dealing with Gale and adhered to his written statement that Gale had reported for duty on time on 10 December 1980. It is not too much to say that the answers recorded in the record of interview were a tissue of lies. Significantly, however, he agreed that Sergeant Talbot had said to him, "Would you like to pull the knife out of my back?" On 10 November 1981, the investigating officers apparently interviewed Constable Gale and a record was made of that interview. On 21 January 1982 Constable Henry was again interviewed and shown the record of the interview with Constable Gale. He then admitted the falsity of his statement and gave a more detailed account of what had happened. He agreed that he had talked with Schneiders about the report which had already been submitted by Schneiders and said that he would put in a report to the effect that Gale was present at the start of the shift to balance the attendance book. He was then asked whether or not there had not been quite a discussion between Schneiders and him as to what he was going to do and say because of the involvement of Sergeant Talbot. He replied, "It was sometime after, a few days after; there was a discussion with Constable Schneiders that we had to stick with-the entry in the book even though Gale had not got there." He was then asked, "I further put it to you that you -9- conspired with Schneiders to deceive not only Sergeant Talbot but Acting Inspector Swinton and Inspector Casey by virtue of a false and misleading report. What have you to say about that?" He replied, "That is correct. I did submit a report that was incorrect, because the Attendance Book was wrong.'"' He went on to say that Tebbet had telephoned him at home to tell him, inter alia, that Gale had been transferred and everyone had to put in reports to Inspector Casey as to what time Gale had commenced duty the previous night. In due course proceedings were instituted under Regulation 19 of the Australian Federal Police (Discipline) Regulations charging Constable First Class Henry that on 11 December 1980 in a report addressed to the Officer in Charge, Eastern Division, he knowingly made in the course of his duties a false written statement, namely, "Members of the shift were Constables R. Gale and K. Schneiders who were present with myself at 10.00 p.m. at the commencement of that shift". He was further charged under the same Regulation that, being aware that Robert George Gale had knowingly made an entry that was false in the record of attendance of members at the St. Marys Munitions Filling Factory station,he failed to report on that entry and, by his omission, was directly knowingly a party to the commission of that disciplinary offence by Gale. The particulars of the offence just referred to include the words "that was". These words are, so far as I can see, meaningless in the context. The nature of the charge was clear, however, and I simply discard those two words from consideration. -10- Senior Constable Henry (he was promoted to that rank on 4 March 1981) admitted the truth of the facts alleged to constitute each disciplinary offence and after the prescribed procedures had been followed was dealt with by the Commissioner of Police who dismissed him from the Australian Federal Police Force. He has appealed to this Tribunal against that dismissal on the ground that the penalty imposed was too severe. In his reasons for his finding the Commissioner stated that Henry, Tebbet and Schneiders had stated to him in almost precisely the same words that the intention of each was to prevent the transfer of Gale from St. Marys Munitions Filling Factory station because each believed that such a transfer would reduce his opportunities of attracting penalty payments and believed he had financial and domestic problems. The Commissioner later stated, "The fact remains, however, that quite clearly the three officers [Henry, Tebbet and Schneiders] serving with Gale that evening all made statements designed to destroy discipline and good order at St. Marys and to totally discredit the authority of their senior officer, Sergeant Talbot." He concluded, "There may be nothing more damaging to good order than false statements which are designed to attack its existence, and a Police Force cannot exist as a well conducted organisation if adequate measures are not taken to show the strongest possible disapproval of such behaviour. As I am unable to distinguish between punishments appropriate to any of the three, although admittedly a heavier responsibility must lie on the officer nominally in charge, I consider appropriate punishment in each case is dismissal." I regret that I find myself unable to agree with the Commissioner that the statements were designed (emphasis mine) to destroy discipline and good order at St. Marys and to totally discredit the authority of their senior officer, Sergeant Talbot. oa -ll- I am, however, satisfied that when Constable First Class Henry made the false statement which he has admitted and was an accessory after Constable Gale's false entry in the Attendance Book, he must have been aware that those actions were, at the least, likely to discredit Sergeant Yalbot. In his findings concerning the appellant Henry, the Commissioner said:- "I... took into account the fact that no adequate investigation had been made at the time. However, the only difference a timely investigation would have made would have been to bring these matters to attention more rapidly and would not have had any bearing on the issues now under consideration. I have therefore discounted the length of time between the offence and its discovery as having any relevance to punishment." I agree with the general approach taken by the Commissioner and with him consider that the fact that an inadequate investigation failed to bring to light the offences is of no relevance. However, when Constable Gale was interviewed on 10 November 1981 the situation must have-been clear to those charged with the principal investigation. Nevertheless more than two months passed before Constable Henry was again interviewed on 21 January 1982. There was then a further delay of more than four months before the instrument initiating proceedings was signed on 31 May 1982. A further 10 days passed before Constable Henry was served with the initiating process. During the period from 10 November 1981 to 10 June 1982 there appears to have been no action taken to suspend Senior Constable Henry from his duties in which he continued rendering, apparently, satisfactory service. In some circumstances such a delay on the part of -l2- those in authority might operate properly to reduce the penalty which might be imposed. In saying this I am not to be taken as suggesting that the doctrine of condonation may operate in respect of a police force. that doctrine relates peculiarly to military service. See Johnston's Appeal, (1961) 9 F.L.R. 31, particularly at pp.40-5. Nevertheless in a disciplined service when facts are uncovered which manifestly warrant the bringing of charges in respect of disciplinary offences, such charges ought to be brought as promptly as possible. It seems to me that it is unnecessary to add to the punishment which a Police Officer guilty of a disciplinary offence is properly liable to and May properly expect by imposing upon him the extra strain of unwarranted delay while permitting him to perform his ordinary duties. In my opinion that strain may properly be taken into account in considering penalty. | In considering the appropriate penalty, I have studiously avoided taking into consideration the fact that Constable Henry subsequently told lies to the investigating officers and that I found myself quite unable to accept his evidence where it differed from that given by Sergeant Talbot. I have also taken into account the references which were tendered and the character evidence which was brought on his behalf. I am to deal with him, in my opinion, only for the offences he has admitted. I do not think it proper to treat him as one who has conspired with others for either of the two designs suggested by the Commissioner. But when all that, is said, I think the penalty of dismissal should stand. I have no doubt that Constable Henry appreciated and acknowledged the gravity of his offences when he told Sergeant -13- Talbot that he felt "lousy" and would have resigned but that he had a family in need of the money, when he tacitly admitted that he had metaphorically stabbed Sergeant Talbot in the back and when he told Sergeant Talbot that he was sorry about the Gale affair for which he "owe[d] [him] one". No disciplined force can operate with maximum efficiency if such disloyalty as Senior Constable Henry displayed towards his superior officer is tolerated. Having taken into account all the matters which I think appropriate I am not persuaded that the Commissioner's decision was wrong. On the contrary, although I disagree to some extent with his reasons for that decision, I agree entirely with it and hence dismiss the appeal. Proceedings were also instituted under Regulation 19 charging Senior Constable Tebbet that on 11 December 1980 in a report addressed to the Officer in Charge, Eastern Division, he knowingly made in the course of his duties a false written statement, namely, "I concluded my shift at 10.00p.m. on the 10th December 1980, and upon conclusion of my duties I noted that P/S. Constable GALE. R. was in attendance at the Police Office." He, too, admitted the truth of the facts alleged to constitute the disciplinary offence and after the prescribed procedures had been followed was dealt with by the Commissioner of Police who dismissed him from the Australian Federal Police Force. He, too, has appealed on the ground that the penalty imposed is too severe. I am satisfied on the balance of probabilities that at some 'tite which I cannot precisely identify but which was probably shortly before he was due to commence his shift on C~) -14- 11 December 1980, Senior Constable Tebbet became aware that Sergeant Talbot had arrived at the Station the evening before and had spoken to Constable Gale to advise him that he knew that he had been late for work and that he thought that he had been drinking and acting irresponsibly. I am satisfied, again on the balance of probabilities, that Senior Constable Tebbet discussed the matter with Constable Gale, more probably than not by telephone. I am satisfied of two other matters. they are:- (a) that Senior Constable Tebbet had some consultation with Constable Schneiders before he completed his report because passages in their reports coincide so nearly as to make it impossible that that occurred other than as a result of consultation; and (b) that Senior Constable Tebbet rang Constable First Class Henry and told him that he proposed to say that he had seen Gale at the Station at 10 o'clock. I prefer Tebbet's version of the conversation to that given by Henry. It is nevertheless clear that when Tebbet spoke to Henry he expected that Henry would act, following the conversation, in such a way that the versions given by both concerning Gale's presence at 10 p.m. the night before would be the same. The use of the word "conspiracy" seems to have arisen as a result of something Senior Constable Tebbet said in his first interview with Chief Inspector Burrows and Acting Inspector Halmarick. He said, "T didn't conspire with other members regarding the report." -15- He was then asked who told him that there was any question regarding conspiracy and replied, "No one, but I believe that if I had instructed the other members in what to submit in their reports ... that this could be construed as a conspiracy." In these circumstances, it is not surprising that thereafter the investigating officers seem to have had it firmly fixed in their minds that there was a conspiracy and this view seems to have been adopted by the Commissioner. What is important to remember is that none of the appellants was charged with conspiracy. Had they been charged with and found guilty of a disciplinary offence involving some form of conspiracy my approach may well have been different. But I am bound to deal only with the charges to which each has pleaded guilty and to consider the appeals in the light of the pleas and the surrounding circumstances which may properly be taken into account. There is, in my view, no need for me to consider whether there was any actual conspiracy as that word is properly to be understood. I am, however, satisfied that Tebbet consulted with each of Gale, Schneiders and Henry about the report which he was asked to submit. I am also satisfied that Senior Constable Tebbet was quite unaware that Sergeant Talbot had been told by Constable First Class Henry what the true situation was concerning Gale's late attendance and consequently could not have had in mind at the relevant time all the foreseeable ' consequences to Sergeant Talbot and his standing in the Force. Finally, the evidence satisfies me that Senior Constable tebbet's motive in making the false statement was merely to assist Constable Gale. In this I find that he -16- acted out of a mistaken sense of kindness, that he foolishly allowed his heart to rule his head and that he gave no adequate consideration to the likely consequences. Had he done so, I am satisfied he would not have acted as he did. He was not interviewed during the course of the first fruitless investigation. Indeed, it is possible he did not know that it was being carried out although by October 1981 he certainly knew because in his first record of interview he stated that he believed what had happened to be "tan unfortunate situation which has brought discredit to not only the people directly involved [including himself], but also the officers that handled the inquiry in the first instance". By the time the interview with him of 22 October 1981 took place he had had much time to reflect on the whole sorry incident and, in ny opinion, characterised it correctly. In his favour it may be said that he did not persist with his falsehood. When he was first asked in October 1981 whether his statement was true he admitted its untruth. The three matters which, in my opinion, I ought to take into account in assessing the seriousness of Senior Constable Tebbet's breach of discipline are:- (a) the false statement made by him as an N.C.0O.: (b) that he should have realised as the senior N.C.0. of the four officers concerned that knowledge of his proposed action was likely to persuade the other three to a similar course or to persist in such a course if they were already contemplating it; and (c) that he should have realised that he owed a particular duty to display integrity as an -17- example to Constable Schneiders who was a member of his shift for whom he was directly responsible and who was, relatively speaking, not much more than a recruit. Evidence of those matters without more would, I think, warrant Senior Constable Tebbet's dismissal from the Force. Appointed in June 1974, Senior Constable Tebbet had had for six and a half years an unblemished record. He has produced references which testify to his general reliability and integrity. The referees were aware of the general nature of the charge against Senior Constable Tebbet. He has acted in the rank of Sergeant and has been assessed as able to cope with his present duties and as | having many qualities which would recommend him for higher rank. He has performed his duties competently despite the strain of waiting. Inspector Casey gave favourable evidence on his behalf. He was asked whether he would maintain his opinion of Senior Constable Tebbet if he knew that he had conspired with a junior constable and a senior constable to undermine the authority of a senior sergeant. No question whether he had so conspired was put to Senior Constable Tebbet and I do not, for the reasons indicated above, believe that he did so conspire. The validity of Inspector Casey's opinion therefore remains. I have had the advantage of hearing Senior Constable Tebbet give evidence. I take into account the strain of the delay before * the charge was preferred. -18- In all the circumstances I think the proper course is to uphold the appeal but I am satisfied that a substantial penalty should be imposed to mark what in all the circumstances is, in my opinion, the appropriate disapproval of the disciplinary offence which Senior Constable Tebbet committed. In substitution for the penalty of dismissal, therefore, I order that Senior Constable Tebbet be reduced in rank to that of Constable First Class with a grade equivalent to that of a Constable First Class who has just completed one year of service in that rank. Constable Schneiders was charged that on 11 December 1980 in a report of that date addressed to the Officer in Charge, Eastern Division, he knowingly made in the course of his duties a false written statement, namely, "Just before I was due to leave at 10.00 p.m. for my hourly tour of the area, I noted that P.S. Constable GALE. R. was in attendance at the Police Office." He, too, pleaded guilty and again after the appropriate procedures had been followed was dismissed from the Force by the Commissioner. He, too, appeals on the ground that the penalty imposed was unduly severe. When first interviewed on 22 October 1981, Constable Schneiders persisted in saying that his written report of 11 December 1980 was true. Eventually, he too was confronted on 21 January 1982 with the record of the interview with the former Constable Gale. It was suggested to him during the course of the second interview that the reports which were submitted were submitted to ridicule Sergeant Talbot and were done with collusion. As I understand his evidence he admitted the collusion but denied that the purpose of the report was to ridicule Sergeant Talbot. -19- I am satisfied that that denial was true. I think that Constable Schneiders' sole purpose was to keep a fellow officer out of trouble. He did not appreciate the possible difficulties which his false report might cause. I am satisfied that he did not know that Senior Constable Henry had told Sergeant Talbot what was the true position regarding Constable Gale's late arrival on duty on the evening of 10 December 1980. I am satisfied that Constable Schneiders was not interviewed during the course of the first fruitless inquiry. I am satisfied that Constable Schneiders lied to Chief Inspector Burrows and Acting Inspector Halmarick when they interviewed him first in October 1981 and many of his answers before me were unsatisfactory, to say the least. However, I leave these matters studiously out of account as I think I am bound to do. R. v. Richmond, [1920] V.L.R. 9 and R. v. Smith, (1946) 63 W.N. (N.S.W.) 231. Taking into account all the matters placed before me including the references tendered on behalf of Constable Schneiders, I an satisfied that the penalty of dismissal was too severe. I take into account particularly the fact that he had been a police officer for only a few months at the time of the offence and that he was entitled to have received firm guidance from his superior officer with which, as I do not doubt, he would never have made the false report. I think that in all the circumstances the proper penalty is that Constable Schneiders should be reduced to the rank of Constable with one completed year's service in that rank. .