ene fe Hye JUDGMENT No. «ale Pal sanded Ge IN THE FEDERAL POLICE No. 7 of 1983 Re DISCIPLINARY TRIBUNAL THE COMMISSIONER OFJPOLICE against SERGEANT WARREN DAVID SCANES IN THE MATTER of the Complaints Australian Federal Police) Act FINDINGS ' THE PRESIDENT (KELLY J) 9 DECEMBER 1983 CANBERRA, A.C.T. THE TRIBUNAL FINDS THAT: - | 1. Sergeant Warren David SCANES is guilty of the disciplinary offence alleged in Charge No. AFP:51/8283, namely:- | That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did seize Danilo RABER and pull him out of his motor vehicle and then did strike him about the head with his hand. 2. Sergeant Warren David SCANES is not guilty of the disciplinary... offence alleged in Charge No. AFP:52/8283, namely:-. improper conduct in his nirary to the ovrovisions official capacity, ' ot the Australian Federal That he was guilty of te) of paragrapa 13(1)°@d Police (Discipline) Regulations, in that on or about 16 July 1982, in the vicinity of Albert Street and Barrine Drive in Acton Park, Canberra in the Australian Capital Territory, he did strike Danilo RABER about the face with his hand. 3. Sergeant Warren David SCANES is guilty of the disciplinary offence alleged in Charge No. AFP:53/8283, namely:- That he was careless in the discharge of his duties contrary to the provisions of paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, having required Danilo RABER to produce for inspection his licence to drive a motor vehicle and the said Danilo RABER having so produced nis licence, he failed to ensure that the said licence was returned to him. IN THE FEDERAL POLICE .) ws No. 8 of 1983 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against CONSTABLE KELVIN GEORGE THORN IN THE MATTER of the Complaints . (Australian Federal Police) Act 1981 FINOINGS THE PRESIDENT (KELLY J) 9 DECEMBER 1983 CANBERRA, A.C.T. THE TRIBUNAL FINDS THAT: - 1. Constable Kelvin George Thorn is not guilty of the disciplinary offence alleged in Charge No. AFP:54/8283, namely:- C: That he was guilty 2 improper conduct in his official ' capacity, contrary :o the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did strike Danilo RABER about the head with his hand. 2. Constable Kelvin George Thorn is not guilty of the disciplinary offence alleged in Charge No. AFP:55/8283, namely:- That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, in the vicinity of Albert Street and Barrine Drive in Acton Park, Canberra in the Australian Capital Territory, he did strike Danilo RABER about the face with his hand. © 3. 4. 5. -2- Constable Kelvin George Thorn is guilty of the disciplinary offence alleged in Charge No. AFP:56/8283 to the extent hereinatter indicated, namely:- That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, ne did remove 2 flagons from a vehicle owned by Danilo RABER and then did break one of the said flagons. Constable Kelvin George Thorn is not guilty of the disciplinary offence alleged in Charge No. AFP:57/8283, namely:- that he was careless in the discharge of his duties contrary to the provisions of paragraph 18¢t)(c) of the Australian Federal. Police (viscipline) Regulations, in that on or about 16 July 1982, at Uanberra in the Australian Capital Territory, Danilo RABER having been required by Acting Sergeant Warren David SCANES to produce for inspection his licence to drive a motor vehicle and having so produced his licence to the said Acting Sergeant Warren David SCANES, and the said licence having then been handed to Constable Thorn for the purpose of recording particulars and after having so recorded the particulars, he failed to return the said licence to Acting Sergeant Warren David SCANES or to Danilo RABER. Constable Kelvin George Thorn is guilty of the disciplinary offence alleged in Charge No. AFP:58/8283, namely: - That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did tear two pages from a pocket diary owned by Danilo RABER. IN THE FEDERAL POLICE ) ) Nos. 7 and 8 of 1983 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against | SERGEANT WARREN DAVID SCANES THE COMMISSIONER OF POLICE against © . CONSTABLE KELVIN GEORGE THORN IN THE MATTER of the Complaints (Australian Federal Police) Act. 1981 REASONS FOR DECISION KELLY J | 9 DECEMBER 1983 By notices dated 27 April 1983 the Commissioner of the Australian Federal police instituted proceedings against Sergeant Warren David Scanes (Sergeant Scanes) and Constable Kelvin George Thorn (Constable Thorn) in respect of a number of alleged disciplinary offences said to have involved one Danilo Raber. Sergeant Scanes was charged with three offences and Constable Thorn with five. In substance the allegations against Sergeant §Scanes were:- (a) that he was careless in the discharge of his duties contrary to the provisions of paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations (the "Regulations") in that on or about 16 July 1982 he, having required and caused Danilo Raber to produce his driver's licence for inspection, failed to ensure that it was returned (Australian Federal Police Charge No. A.P.P. 53/8283) and (b) that he was guilty of improper conduct in his official capacity, contrary. to the provisions of paragraph 18(1)(d) of the Regulations, in that on or about 16 July 1982 he (i) on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra seized Danilo Raber, pulled him out of his motor vehicle and then struck him about the head with his hand (Australian Federal police Charge No. A.F.P. 51/8283); (ii) in the vicinity of Albert Street and Barrine Drive in Acton Park, Canberra struck Danilo Raber about a be the face with his hand (Australian Federal Police Charge No. A.F.P. 52/8283). "In substance the allegations against Constable Thorn were:- (a) that he was careless in the discharge of his duties contrary to the provisions of paragraph 18(1)(c) of the i Regulations in that on or about 16 July 1982 he, having U had handed to him by acting Sergeant Scanes Danilo Raber's driver's licence (which the latter had been required by Sergeant Scanes to produce) so that he might record particulars thereof failed, having recorded the particulars, to return the licence to "acting Sergeant Scanes or to Danilo Raber (Australian Federal Police Charge No. A.F.P. 57/8283), and (b) that he was guilty of improper conduct in his official ; capacity contrary to the provisions of paragraph © 18(1)(d) of the Regulations, in that on or about 16 July 1982 he ° (i) on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra struck Danilo Raber about the head with his hand (Australian Federal Police Charge No. A.F.P. 54/8283); (ii) in the vicinity of Albert Street and Barrine Drive in Acton Park, Canberra struck Danilo Raber about the face with his hand (Australian Federal Police Charge No. A.F.P. 55/8283); (iii)on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue bridge, Canberra removed two flagons from a vehicle owned by Danilo Raber and then broke the flagons (Australian Federal Police Charge No. ALP.P. 56/8283) and (iv) on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory tore two pages from a pocket diary owned by Danilo Raber (Australian Federal Police Charge No. A.F.P. 58/8283). Through his solicitors each of the officers promptly denied all the charges. against him. The relevant part of Regulation 18 of the Regulations provides:- "18.(1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member - (c) is negligent or careless in the discharge of his duties; (d) is guilty of disgraceful or improper conduct, either in his official capacity or otherwise; wee (2) A member. who aids, abets, counsels, procures, or by act or omission is directly or indirectly knowingly concerned in, or party to, the . commission of any disciplinary offence shall. be deemed to be guilty of that- disciplinary offence and is punishable accordingly." The two sets of charges were heard together. At the outset, Mr. Higgins for the two officers maintained on their behalf their denial of the charges and also made a formal objection to this Tribunal's hearing the charges in relation to conduct which would also constitute a criminal offence. He referred in particular to Australian Federal Police Charges Nos. A.F.P. 51/8283 and 52/8283 laid against Sergeant Scanes and Nos. A.F.P. 54/8283,. 55/8283 and 56/8283 against Constable Thorn. I overruled the objection, In a judgment handed down on 19 August 1983 and as yet, so far as I know, unreported, the Federal. Court. of Australia, Neaves J, held that the expression "disgraceful . or improper conduct" in Regulation 18(1)(d) of the Regulations includes. conduct which, while answering the description of disgraceful or improper conduct, also amounts to a breach of the criminal law. Allan v. Commissioner of Australian Federal Police. I consider myself bound to follow that decision. Appropriate certificates given under. the provisions of s.68(1) of the Australian Federal Police Act 1979 established that on 16 July 1982 Sergeant Scanes held the rank of Senior Constable and presently holds the rank of Sergeant while Constable Thorn held on that date and still holds the rank of Constable in the Australian Federal Police. On 16 July 1982 Sergeant Scanes held the acting rank of Sergeant. At 2.48 a.m. on 16 July 1982, a taxi driver advised the police at Canberra Police Station that a Valiant Charger car was parked in Commonwealth Avenue, Parkes, and had been so parked for approximately one hour with the engine running. There was one person in the vehicle. The precise location of the vehicle, according to the message form tendered in evidence and marked Exhibit 0, was the medium (sic) strip opposite the Albert Hall/Commonwealth Avenue. A .typed transcript of a tape which recorded wireless traffic between Police Headquarters Canberra (Headquarters) and mobile patrols was tendered in evidence and with cassettes used to record the relevant material from the tape became Exhibit N. Such tapes when in use are coordinated- with time signals so that, barring accidents, the time of a particular transmission may be recorded simultaneously with its making and with great accuracy, intervals of 10 seconds being shown. The transcript shows. that between 2.48 and 2.49 Sergeant Scanes, who was then a member of the two man erew of a police patrol car which had the wireless call sign "Hotel g" (I will call it "Hotel 8"), advised Headquarters that a particular task upon which he had been engaged was complete. Thereupon he was told of the Valiant Charger in "words which reflected faithfully the message which had been received from the taxi driver and asked to look into the matter. (About a minute later, as the transcript records, one or other of Senior Constable Crampton and Constable Cantle, the crew of another police patrol car which had the wireless: call sign "Sotel 14" (I will call it "Hotel 14") advised their availability for their next assignment. Sergeant Scanes then spoke to Headguarters and said, a | "You might get that car to check that out, will you; we're right down in Canberra Avenue." By this he meant, as may be gathered from an undated statement which he made on, I find, 11 August 1980 (Exhibit K), that Hotel 8 was near H.M.A.S. Harman, some miles away. Within about three minutes, at about 2.544 a.m., Constables Crampton and Cantle had alighted, as Exhibit N shows, from Hotel 14 near the Albert Hall. Constable Crampton gave evidence that on arrival at the location he saw a white motor vehicle facing north. Its. engine was. still running. He approached the vehicle and saw a man in the driver's seat. He gestured to him to wind his window down. He did so and Constable Crampton had a short conversation with him. The man was Danilo Raber. Constable Crampton had difficulty communicating with him and said as much to Constable Cantle. When Mr. Raber first wound down the window, Constable Crampton detected a strong smell of alcohol on his breath and inside the car. He thought the smell was of wine. He formed the opinion that Mr. Raber was well under the influence of alcohol. He had not detected any' smell of alcohol outside the vehicle before the window was wound down. Shortly after his conversation with Constable Cantle he turhed towards Commonwealth Avenue and saw Hotel 8 pull up near the kerb. Sergeant Scanes asked him what the trouble was. He replied that the man sitting in the vehicle was not answering his directions or the questions he had put to him. Sergeant Scanes ordered him to resume patrolling and some seconds before 3.02 a.m. he advised Headquarters that Hotel 14 waS again mobile, the job at Commonwealth Avenue having been completed. 'He gave evidence that when Hotel 8 arrived at the scene, Mr. Raber turned off the engine of his vehicle. BY that time he had been in Mr. Raber's presence for some four or five minutes. The evidence just referred to- accords pretty well with the timings shown in Exhibit N. When he left the area Hotel 8 was still parked where it had pulled up, some six metres behind Mr. Raber's vehicle. When he spoke to Mr. Raber he saw his face but. there were no injuries on it and no blood around his mouth or eyes. Nor did he see any glass, particularly glass from a broken flagon, lying near a tree near Mr. Raber's car. He did not touch Mr. Raber at all and although he asked him to produce his driver's licence, Mr. Raber did not. . In cross-examination he stated that when he first arrived at the scene Mr. Raber appeared to be asleep. He had not searched the vehicle. The lights were not on in the vehicle and there was no direct street Tighting onto Mr. Raber's face. He agreed that the lighting in the particular area where Mr. Raber was parked was dim at the time. He fixed Constable Cantle's position when he first approached the vehicle as some two metres behind him to the right of the vehicle. Constable Cantle gave evidence which accorded with that of Constadle Crampton. Asked whether she noticed anything about Mr. Raber she said that he was European and appeared to be a small man. She could smell the fumes of alcohol when the window was wound down. She never got closer than within five feet of Mr. Raber. She saw no blood or any signs of injury on Mr. Raber's face nor did she see him holding a handkerchief to his face. She thought him to nave been under the influence of alcohol. Before the window was wound down she noticed no smell of intoxicating liquor in the vicinity of the vehicle. She did not touch Mr. Raber at all and did not see him produce his licence to Constable Crampton. At the completion of his shift Constable Crampton completed a message sheet concerning the incident. It. is apparent that some of the message sheet was completed by a person or persons other than Constable Crampton. That part of the message sheet reads as. follows:- "INDEX DETAILS: NAME(S): AERIAL SUBURB: PARKES TYPE: MISC NON CRIME MSGS.NO 1238 TIME IN 0248 TIME OUT 0250 PATROL H14 CRAMPTON CANTLE COMPLAINANT: AERIAL MSGS TEXT: MEDIUM STRIP OPPOSITE ALBERT HALL VALIANT WITH MOTOR RUNNING" At the conclusion of his shift Constable Crampton typed the following:- "Attended and spoke to Driver of a white valiant Charger parked on medium strio. After a short conversation H8 Supervisory Sgt. Scanes arrived and Hi4 departed the area. N.F.P.A." The abbreviation just used is for the words "No Further Police Action". There follows in different type face the words "Male person left the area on foot upon Police request.", 'a sentence. which was later typed by Sergeant Scanes following a request by a supervising sergeant that he should complete the report. Mr. Rocco Pelle, a storekéeper, gave evidence that at about lunchtime on 15 July 1982 Mr. Raber bought some groceries and two flagons of Kaiser Stuhl claret. He had known Mr. Raber for about three years. When he served him on that day he looked at his face but saw no injuries on it. He agreed that he had not paid particular attention to Mr. Raber's face nor examined it minutely. Shown a photograph of Mr. Raber which showed bruising on the upper lid of the right eye, bruising which he readily detected in the photograph (No.1 of Exhibit C), he stated that he had not seen that bruising when he. saw Mr. Raber on 15 July 1982. He said it was not there then. He identified a label attached to some glass which became Exhibit D as appearing to be the same as that on one of the flagons which he had sold Mr. Raber. Mr. Raber gave evidence that on 15 July 1982 he purchased two flagons of-claret, some cheese and mortadella from Mr. Pelle. He put the flagons in his car. He finished work at about 4.30 p.m. and then went to the Italian Club where he had, he said, two or three beers and played a poker machine. He did not know what time he finished but thought it was about 9 o'clock when he left the Italian Club to go home. Leaving the Club he made his way to National Circuit, turned left into Canberra Avenue, right into State Circle and so into Commonwealth Avenue to a point on the left hand [western] side of thac avenue north beyond the Albert Hall. © -~10- He confirmed in evidence that he had shown the route he had travelled to Sergeant McGufficke. Sergeant McGufficke gave evidence of the names of the streets' which he had traversed. Mr. Raber's evidence on this was clear enough if one knows the district but lacked names of streets. He said that he stopped his car behind some trees off the road in, as he put it, "the paddock". He said he was a little past the Albert Hall towards the bridge by which, no doubt, he meant Commonwealth Avenue Bridge. It appears that at some time during his journey from the Italian Club to the spot in "the paddock" he had picked up a passenger but by the time or after he stopped there the passenger had left the car. To some extent his movements are a4 Little mysterious and I was unable to accept that he left. the Club at 9 o'clock to travel immediately to the point where his car was found. I am satisfied, too, that he was well affected by intoxicating liquor and I accept the evidence of Constable Crampton that he smelt the fumes of wine on Mr. Raber's breath. No attempt was made to establish from members of the Italian Club the time at which Mr. Raber left that Club on the evening of 15-16 July 1982 and no evidence enables me to say how long his car was parked off Commonwealth Avenue. It may well. have been parked there before the time when its presence was reported by the taxi driver, apparently at 2.48 a.m. as appears from Exhibit P. I am satisfied, too, that when Mr. Raber was first approached by the crew of Hotel 14, he was asleep and, no doubt, fairly heavily asleep. It seems probable that when he first pulled off the side of the road he stopped the engine because at one stage he seems to have wakened, started the engine to warm up the car and smoked a cigarette. He said he only saw two policemen. He was not initially prepared to agree that there was a policewoman present although subsequently he recollected the presence of a lady. I think, on the whole, that he did not become fully aware of what sas happening until Sergeant Scanes and Constable Thorn «sok over the investigation of the incident. He could not identify any of the police officers concerned in the investigation. Asked how tall they were he described one as being about si: feet tall and the other a little bit smaller. He then gave evidence that the bigger of the two policemen grabbed him by the jumper and pulled him out of the car and subsequently smacked him on the mouth causing it to become sore and his nose to bleed. He could not be certain whether the blow was with the fist or with what appears to have been a baton 2: some other object. When the bigger policeman grabbed him x: said, "Come out". , He said he was 'smacked once or twice. The larger policeman then told him to open the boot. He did so. The policeman checked the things in the boot and told Mr. Raber to put them back in. The bigger policeman then checked inside the car and found two flagons of wine. He told the smaller policeman to break them on the trees. The smaller policeman did so. He was then asked for his driver's licence and he gave his wallet to the police together with a notebook. He could not remember which of them asked him for his licence. The licence was not returned to him. He said ~12- that the bigger police officer said, referring to the notebook, that Mr. Raber had some telephone numbers. Mr. Raber told him that the numbers were those of the company he worked for and private numbers. The wallet and book were returned but before this was done the smaller of the two policemen tore two pages from the notebook. He said that the smaller of the two police officers pushed him but did not smack him. He said, "Tne smaller one did not do anything much to me, mostly the big one." Of the smaller one he said that he broke the flagons, checked over the car and tore the pages from the book. He said that he was then told to go home and started walking. First he started to walk towards the city, i.e. in a northerly direction. He was told, "You don't live "that way, you live at Wanniassa [to the south]". He then went through the nearby underpass. He. stayed there for a couple of minutes and then returned to the car and started to drive it over the bridge. He was halfway over the bridge when he noticed that some police were following him. He could not stop on the bridge but crossed it and turned left down a road leading to the lake. There he stopped where it was flat. The police came down and told him "TIT tell you to go home". He thought they were the same two police officers. He could not be sure but he thought they were the same because they said to him "I tell you to go home". Again they told him (this time both of them) to go home, leaving the car. He said that the bigger policeman grabbed him by the jumper and held him close to the car. He said that he did not smack him again but he couldn't remember -13- perfectly because he was very scared. He was pushed around a little and told to go home. His evidence suggests that he was again struck on the face causing his nose to bleed a little more. The police apparently left and he walked up onto Commonwealth Avenue where he stopped a taxi in which he was eventually driven to where he was living at Watson. Cross-examined he agreed that he had had one conviction for driving under the influence of alcohdl and two for driving with an amount of alcohol in excess of the prescribed concentration in his blood. He had also been convicted twice of drunkenness. 'He said. that while he was: coming out of the car he was grabbed and pulled out on the first occasion. There were some questions directed to the suggestion that what had happened to him might have been as a result of an accident. He said, "Maybe it is an accident for the police. Maybe they dropped me or something like that. Maybe accident. I no tell if they want to smack me or something, maybe accident because the police are not. allowed to smack the people. Maybe is accident, maybe not. yes, I said that they had smacked me, that is all, .maybe they think it is accident, but no accident." Asked about a complaint that he had apparently made that he was punched above the right eye, he replied, "No, in fact they had punched me in the face, I was bleeding, that is all I know. I cannot remember now." He reiterated that the police had told him to go home to Wanniassa. He believed that they may have seen a Wanniassa address on his licence. After starting to leave the scene and having decided to return to his car he did not see the -~yA- police car any more at the scene of the first encounter. He said that when the taxi arrived the police were still down near his car. He said that he had said to the taxi driver, "Rook the police hit me.and I do not. know why." He could not remember whether he had pointed out the police car to the taxi driver. He said that he paid the taxi driver with money which he had in his pocket. He had earlier said that he had arrived home about midnight. Before he went to the police to complain about the treatment which he said had been meted out to him he needed his car and went and fetched it and went to the police station. He was asked why he had not been to the police station first and let the police see where the car had been left.. He replied that he showed them exactly where the car had been left. He was then asked, "Is there any reason why you did not first go to the police and then show . them where the car had been left?" He replied, "Because JI did not want to harm the policemen. I did not want to do them any harm and I thought perhaps it was not fair and then I thought well, perhaps it was not fair that this. should happen to me, and then I decided to go." He was then asked whether on 15 March 1983 he had been convicted of having committed an indecent assault on his daughter. He agreed that he had, that he had been sentenced to nine months imprisonment, and that he had pleaded guilty. He also said that in 1972 he had been charged with hindering the police_-and had been convicted of that offence and further that on 24 Marcn 1976 he was convicted of assaulting a female. One gathers that. the. female assaulted was his wife. Stewart Andrew Nicholl, a taxi driver, gave evidence that between 3.30 and 3.40 a.m. on 16 July 1982 he was carrying two passengers north from Phillip. He saw a Man on the median strip in Commonwealth Avenue about 100 yards north of the bridge. The man appeared to be in some distress. He had blood over the lower part of his face which appeared to be coming from his nose. It had not stopped bleeding but was not bleeding freely. It appeared to his layman's eye to be less than an hour and a half old. He identified Mr. Raber. He took his two passengers to Bega Flats and then took Mr. Raber to Molesworth Street, Watson. He said he waited while Mr. Raber went into the house. Some time later, it might have been 7 or 8 or 10 minutes later, a woman came out and paid the fare. He remembered having to wait for the money. He thought it was a woman who came out to pay him. He had seen no other traffic in the vicinity of Commonwealth Avenue Bridge. His attention was not directed to the lake on the western side of the bridge. Job dockets provided by the Aerial Taxi Service, Exhibit. G, were consistent with the evidence given by Mr. Nicholl. Constable David James Kent said that on the "morning of 16 July 1982 he was in a police car the call sign of which was Sierra 21. At 3.07 a.m. he left the Woden Valley Hospital to return to the City Police Station. Part of his route took him along Commonwealth Avenue and across Commonwealth Avenue Bridge. He reached the carpark near the -16- City Police Station just before 3.15 a.m. Exhibit N indicates that he left the Woden Valley Hospital sometime between 3.06 a.m and 3.093 a.m. He could not recall whether he saw any vehicles along Commonwealth Avenue or not. Constable Smeltink gave evidence that on 21 July 1982 he attended at Commonwealth Avenue about 200 metres south of Commonwealth Avenue Bridge. He was shown an area of grassland about three metres west of the Avenue and a tree beneath "which was a quantity of glass. lying on the grass. He took photographs of the glass. The photographs were tendered and became part of Exhibit Cc. He was shown Exhibits D and E, respectively the glass with a label attached to it and a piece of glass, and identified them as having been handed to him by Sergeant McGufficke. He examined both pieces. of glass for latent identifiable fingerprints but found none. He found the neck of one flagon and a part of the base. He found only sufficient glass to make up one flagon. He said that the neck was just a piece of glass without any cork or seal or top. Its upper part was complete but the lower part was jagged. He found no signs of wine within the pieces of glass. He found no evidence of any disturbance of the outer skin of the tree. Sergeant McGufficke gave evidence. At about 1.00 p.m. on Friday 16 July 1982 in company with Detective Sergeant Jones he interviewed Mr. Raber and a Mrs. O'Rourke. Mrs. O'Rourke acted as interpreter for Mr. Raber. He "noticed that Mr. Raber had an injury to the bridge of his nose, a swollen top lip and bruising to one of his eyes. Mr. Raber was medically examined by Dr. Smyth. -17- Photographs were taken of Mr. Raber's face. They eventually formed part of Exhibit C. He was then directed by Mr. Raber along the route which he had travelled on the evening of 15 July 1982 and to which I have referred already. He identified the tree shown to him by Mr. Raber. Photographs Nos. 7 and 8 forming part of Exhibit C show the tree as the first in a line of three stretching to the north. The last of those trees is near a point where a street leading from the western side at an acute angle debouches' into Commonwealth Avenue at a point some little distance south of Commonwealth Avenue Bridge. Photographs 10 and 11, again part of Exhibit C, show a location said to be the position in Acton Park on the north western side of the bridge which Mr. Raber pointed out. to Sergeant McGufficke. Sergeant McGufficke stated that Mr. Raber did not point out glass to him but indicated a particular tree a little in front of which he said he. had parked his car. Station Sergeant O'Boyle gave. evidence of the normal procedure in relatibn to messages received by Headquarters and transmitted by Headquarters to mobile patrols. A radio enquiry, Exhibit 0, shows that the message from the taxi driver was received at 2.48 a.m. on 16 July 1982. The card indicates that Sergeant Scanes and Constable Thorn in Hotel 8 were first directed to the scene but that subsequently Constables Cantle and Crampton in Hotel 14 took over the task. The time of arrival at the scene is recorded at 2.54 a.m. and the time of resumption of patrol is recorded as 3.01 a.m. These timings accord with those on Exhibit N which refer to Hotel 14. I see no reason to doubt the accuracy of Exnibit N. I accept, however, that it is possible that a call apparently made from Hotel 8 at 3.49 a.m. was not completely recorded. I set out the entries appearing on Exhibit N which seem relevant to these matters. " Hotel 8 2:48.50 Hotel 8 —- mobile job complete (SCANES) Roger 2:50 Hotel 8 Hotel 8 (SCANES:) - Yes 8 We've had a report that there's a Valiant Charger parked on the medium strip opposite the Albert Hall on. Commonwealth Avenue and that it's, been there for approximately one hour with the engine running and there's a person in the vehicle. Can you look (or check) into it please. Yeah Roger. 2:51 + 10 seconds Hotel 1 4 to VL 1 Hotel 1 4 Mobile City Branch . Roger Mate, you might get that car to check that out, will you, we're right down in Canberra Avenue. Roger. Hotel 1 4 can. you check. a red Valiant. Sorry I don't know the colour .... a Valiant Charger parked on the medium strip opposite the Albert Hall on Commonwealth Avenue, It's been there for about an hour with the engine running there's a person in the vehicle. VL 1 4 copy 2:54 + 30 seconds Hotel 1 4 out of the car Albert Hall One four ~19- 3:01 + 40 seconds Hotel 1 4 to VL 1. mobile job complete (Commonwealth Avenue) Hotel 1 4 eee 3:04 + 40 seconds Hotel 8 .... to VL 1 Hotel 8 Warrant check when you're ready, please (SCANES) Go ahead -Christian name -:- Danilo, Surname RABER, 25.1.32. Stand-by 3:05 + 50 seconds" Bravo 8 Bravo: 8 - yeah, could I speak to Hotel 8, please? 5 Hotel 8 - C (Hotel 8) Go ahead (SCANES) . . (Bravo 8) Are you free to speak? (Hotel 8 -— (SCANES) Yeah, he's in his car. (Bravo 8) Yeah Radar McGAHEY wants to talk to that bloke about some sex offences. I'm wondering if * you could just see if you. can get a new. address on him. The last one was somewhere over Watson or | Downer. | - (Hotel 8) Yeah he seems a bit queer : to us too. He said he lives in Wanniassa. We'll get a proper | . address and let you know. : weer TIL give it to Radar (MCGAHEY ) ~ : (Bravo 8) Thank you. C) ; (VL 1) Hotel 8 - ... No warrants ' (Hotel 8). Roger. Sierra 21 mobile Woden Hospital $21 3:09 + 30 seconds Hotel 6 mobile City 3:17 Hotel 8 ~ ....Mobile Hotel 8. 3:49 + 10. seconds Hotel 8 ... Hotel 8" As indicated earlier, I am satisfied that the transcript records accurately the wireless traffic between Headguarters and the two patrol cars, Hotel 8 and Hotel 14 -20- at the relevant time save that I accept that the text of one message from Hotel 8 may not have been recorded. I am satisfied that the practice was that mobile patrols should indicate their location from time to time even though they were not engaged on a particular task. Mrs. O'Rourke gave evidence. She remembered the morning of 16 July 1982. She was Mr. Raber's landlady. She had accoémpanied Mr. Raber to the Police Station where he had spoken to various police officers. She nad acted as interpreter and had translated correctly what he said and what was said to him. She remembered his. coming home in the early hours of. the morning of 16 July 1982. She noticed that his face was very bruised and he had cuts on the eyes. Asked had she noticed anything else about his face she said, "Except he had all bruised face. 'I think something around the lips or something around the eyebrow here." Although she said she remembered his coming home by taxi she denied that she had paid his fare and concluded that he had come home by taxi from something she was later told. She could not remember the éxact time when he came home. She denied that Mr. Raber came in to borrow some money from her to pay for the taxi. She had seen Mr. Raber the day before when he had no bruise on his eye. Some little confusion appears in her evidence from which it might be thought that Mr. Raber had been shopping on the Friday night and had come home bruised after that but I am satisfied that Mrs. O'Rourke meant that the bruising she observed was visible on the morning of Friday 16 July 1982. The following passage occurs in her evidence:- -21- "Did you take Mr. Raber to the police? --- I just talk to Mr. Raber and I say to report the case to the police. Just do what they say. Did he tell you as soon as he came in, bruised, that he had been bruised by the police? --- No, he told me during the night when he came home. Did you suggest to him that he should go and see the police straight away? ~-- Straight away, yes I did, you have to report the case to the police. Did he report it straight away when you told him to? -~- No, no. Then during. the next day, we went, during the evening down to the police." I am satisfied that Mrs. O'Rourke is a truthful woman but I believe also that she had some difficulties with English, which is not her native tongue. I am unable to establish however what was the true position regarding the payment of the taxi fare having regard to the conflicting evidence of Mr. Nicholl. One of them is clearly mistaken on this point and I am not prepared to accept that Mr. Raber's evidence resolves it. However, in the view I take of the whole situation, I think resolution of the matter is of no importance. A minute made by Acting Chief Inspector Michael Craft was tendered. He was not available to give evidence but Mr. Bermingham tendered the minute without objection from Mr. Higgins. It was not suggested that the minute did not reflect faithfully what Acting Chief Inspector Craft had been told by Mr. Raber. I set out the text of that minute:- "At 12.40pm this date I spoke to Mr Danilo RABER of 26 Molesworth Street, Watson, ACT (DOB: 25/1/32), a conerete finisher, in relation to an allegation that he had been assaulted by a number of AFP Police members on the evening of Thursday, 15 July 1982. At -22- the time Mr RABER was accompanied by Mrs Marina O'ROURKE of the same address, who on several occasions acted as an interpreter from the Italian into the English language. 2. Mr RABER claimed that after finishing work 'out in the forest' on 15th instant. at about 4.30pm he had gone shopping. at Yarralumla Shopping Centre, then immediately began to proceed home because 'I was very, very sick'. Mr RABER then recounted driving his motor car over the bridge, felt more sick, and pulled into parkland near Lake Burley Griffin to have a sleep. 3. Mr RABER claimed that a number of Police members roused him from his sleep about one hour later and began abusing him with terms such as 'Poofter'. He was requested to furnish his motor vehicle drivers licence which on production was read and then torn apart. He was then instructed to alight. from the motor car and on doing so was punched about the face, predominantly the mouth area and also the left cheek bone. He was then instructed to leave the area, which he did immediately. After a short walk he hailed an Aerial Taxi and travelled to. 26 Molesworth Street, Watson, arriving at the location about 10.30pm that night. 4. Mr RABER sustained swollen lips as a result of the alleged assault by Police, this injury being constantly indicated (or referred to) by the complainant. At no time did Mr RABER ma[k]e mention of distinct bruising _above his right eye, until questioned by me, and this was-also claimed to have been done by Police members on 15 July 1982. Although I am not qualified to give expert medical opinion, I feel sure the bruising above the eye is substantially older than 48 hours. 5. At times Mr RABER was extremely hard to understand, even with the assistance of Mrs O'ROURKE (who had an excellent command of the English language) and I found it difficult to educe information to fill the apparent time gap between finishing work at about 4.30pm and arriving home at about 10.30pm on 15 July 1982. 6. Mr RABER recounted that he had visited the following localities after finishing work on 15th. instant:- -23- Narrabundah Greengrocery Shop, where he spoke to an [Italian friend (Christian name similar to ROSSI) * Yarralumla Shops (although this may have been during the 'lunch hour' that day) * The Italian Club 7. The complainant claimed that a 'friend' was in his car when he parked near the lake but this original terminology was later altered to 'a person', the identity of whom was unknown. Mr RABER claimed that this person, presumably a hitch hiker, had left the area of his parked car prior to the arrival of Police so. obviously can be discounted as a witness. 8. Mr RABER claimed initially that he did not drink intoxicating liquor, however, at one period claimed that he had purchased a number of flagons. of wine at. the Italian Club for his own consumption (before leaving on 15 July 1982). He emphasised that he did not consume intoxicating liquor at the Italian Club, merely glasses of orange juice. 9. In light of the fact that a Medical Examination of the complainant was warranted I contacted Detective Chief Inspector WwW. BEALE, Internal Investigation Division, for a direction as to:- 1. Who should take the statement of complaint, should Mr RABER choose that course of action; 2. What arrangements should be made as to a Medical Examination. 10. The Detective Chief Inspector, after. confirmation, advised me that Detective A/Senior Sergeant G. MCGUFFICKE and Detective A/Sergeant P. JONES had been assigned to the Matter and would take a statement if necessary and arrange a Medical Examination by Dr SMYTH, should the complainant consent to same, . 11. Perhaps this report could be forwarded to the Officer in Charge, Internal Investigation Division, for his information." In his statement made to Sergeant McGufficke on G August 1982 Constable Thorn stated that he attended a position along Commonwealth Avenue, adjacent to the Canberra -24- Hotel, where he heard Constables Cantle and Crampton speaking to a male person seated in a white motor vehicle. He said that after telling Constable Crampton to return to his normal duties, Sergeant Scanes spoke to the man who seemed to have an arrogant mannec. He detected a strong smell .of alcohol coming from the tar. The keys were in the ignition but the motor was not cunning. He said that the man was told that, considering <ne smell of alcohol on his breath, he had better find anotser way of getting home and was not to drive the car again tac night. A warrant check was made but no relevant warrants 'vere in existence. The name for the warrant check was obtained from Mr. Raber's licence. He then made a comment which I understand to be shorthand for indicating that he learnt. then that the Police 'wished to interview Mr. Raber in connection with some sexual offence. By this time Mr. Raber was out of the car and it was noted that his trousers' fl. was undone. Asked about that he did not answer. Sergean: Scanes then told him to leave and not to drive the car aciin that night. Constable Thorn said he replied, "Why I go, I do nothing?" Sergeant Scanes then pointed towards the new. Parliament House [i.e. in a southerly direction] and told him to go and not to drive the car again that night. The statement goes on to say that Mr. Raber then went off abusing police loudly. The two officers then got back into the car and went round to the front of the Albert Hall and waited there to see if Mr. Raber would come back for his car. He did not and the patrol continued normally on the north side. Constable Thorn did not see Mr. Raber or his car again that night. CO -25- Mr. Raber's car registration sticker was checked against the car plates and the condition of the tyres was checked. Mr. Raber did not appear to have any marks on him when spoken to but, said Constable Thorn, "He may well have". The statement was Exhibit H. A record of a conversation between Sergeant McGufficke and Constable Thorn was" tendered and became Exhibit J. Constable Thorn said that he could not be more precise as to the position of Mr. Raber's vehicle. He had noted in his official notebook the registration number of the car and Mr. Raber's name and address shown as, according to the record, 13 Langride Street, Wanniassa. {Taking Lake Burley Griffin as the boundary between the north and south of Canberra, Wanniassa is a southern suburb while Watson is a northern suburb.] Constable Thorn had obtained these details from Mr. Raber's driver's licence which he said Sergeant Scanes had asked him to produce. His description of the scene on his arrival accords generally with that given by Constables Crampton and Cantle. He did not recall the conversation between Sergeant Scanes and Constable Crampton. His memory of the conversation between Mr. Raber and Sergeant Scanes was vague. He could recall that Sergeant Scanes asked why Mr. Raber was there, asked him to get out of his car and asked him for his driver's licence. He recalled Mr. Raber replying something like "no business yours". He was then asked, "Do you recall at what point in time Mr. Raber was asked to get out of his car?" He is recorded as replying "No, exactly no". I assume there is an error in transcript and that he said "Not exactly, no". He -26- was then asked, "Did he get out of his car?" and he replied, "No, he did later on while we were doing the warrant check. He got out himself". He said that there was then some discussion concerning the offence in relation to which the Police wanted to question him and reiterated that he saw that Mr. Raber's fly was undone. He was asked about that but gave no answer. He was asked some more questions to which he did not answer and was then told again to go and not to drive the car again that night. The questioning was carried out by Sergeant Scanes. Mr. Raber then said something to the effect of "why I go, I do nothing". Sergeant Scanes then pointed towards the new Parliament House and told him to go and not to drive again that night. He could remember no complaint from Mr. Raber concerning. the actions of Constables Crampton and Cantle. He reiterated that. after Mr. Raber had been told for the last time to go. "he went off, abusing and cursing us. Abusing Police in ' general." Constable Thorn said that Mr. Raber headed up towards the new Parliament House and that to ensure that he did not come back and drive his car again he and Sergeant Scanes got back into their car and drove round to the. front of the Albert Hall to wait to see whether he would come back. He said that neither he nor Sergeant Scanes had searched the cabin of Mr. Raber's vehicle and that neither he nor Sergeant Scanes had removed two flagons of wine from the back seat of the vehicle. He had seen some broken glass behind a tree towards the back of Mr. Raber's vehicle. He had seen it just after the first part of the conversation between Sergeant Scanes and Mr. Raber. He picked up the -27-— neck of the broken glass out of curiosity. He could not. remember whether the glass was wet or dry and could smell no liquor near where he found the broken glass. He did not bring the broken glass to the attention of Sergeant Scanes. He said that he did not get a real good look at Mr. Raber. It was very dim. He saw no blood on his face and did not take much notice of his mouth. He knew nothing of an allegation made by Mr. Raber that two police officers had pulled him from his car om the southern side of Commonwealth Avenue Bridge and hit him in the face.. He denied that he was one of the police officers concerned. He denied that he knew anything about an allegation made by Mr. Raber that one of the two police 'officers had removed two flagons from the cabin of his vehicle and smashed them against a tree. He. denied that he had broken any flagons of wine belonging to Mr. Raber. He - said that Sergeant Scanes returned Mr. Raber's licence to him. He denied that he had any occasion to search the boot of Mr. Raber's vehicle on the night and denied too that he knew anything of an allegation that Mr. Raber had had two pages torn from his pocket diary by the same police officers. Finally he denied that Mr. Raber was subsequently stopped on the northern side of Commonwealth Avenue Bridge and there assaulted by both police officers. Sergeant | Scanes' statement described the allegations against him as outrageous. Part of it reads as follows:- " ...sometime later I again received a message to attend Commonwealth Avenue re a vehicle on the median strip. The message was. directed ~28- to me as the Supervisor because asi-I recall all other cars were attending to messages. I advised of my location I believe it was Harman and asked if in fact there was another car available. I forget the response and headed towards Commonwealth Avenue. Constable Thorn was driving. Some time later we arrived at Commonwealth Avenue opposite the old Canberra Hotel and I saw that another car was in attendance. Constable, I forget the male member but the other officer was Constable Gail Cantle. They appeared to be arguing with the male occupant of the car. Due to the unavailability of other patrols I directed them to leave the scene and that I would take care of the matter. They then left. I spoke to the driver of the vehicle I believe it was a charger and asked him why he was parked there. I didn't receive a reply. I asked him his name I..think he: replied What. you want that for. I could smell intoxicating liquor on his breath and he appeared in an agitated state. I again asked him why he was there and his name. I'm not sure whether he replied or not. The car. at. the time was not. running and I was therefore unable to subject him to a screening test. I asked him for his driver's licence and was surprised that he handed it over without . being hard to get on with. I believe I would have said as I always do, Is your name so and so and do you still live at so & so. TI don't recall if he replied or not. I did a warrant check on him, it was clear. _But I was informed. that he was wanted by a member from Belconnen in relation to some form of sexual: offence. When I had finished the radio transmission I believe Raber if in actual fact that was his name, at this stage I don't have any recollection of his name, was outside the car standing up. It was. then TI noticed that his fly was open. Coupled with the information I had just obtained I questioned him re his open fly. eee I couldn't get much sense out of him and told him to. start walking home. He said something like no I not. go. I again told him to go and that he couldn't drive: his vehicle home because he had consumed too much alcohol. He objected strongly to this as I recall and I again warned him re driving and to walk it off. prior to. this conversation I believed I handed his 'licence to, Constable Thorn who made the appropriate notations in it. -29- He then walked off towards the new Parliament House site saying words I could not understand. I think I shouted out to him. Just get going and leave your car here tonight. We got back into the car and drove to Albert Hall where it was my intention to 'sit off! the vehicle in the advent he returned and tried to drive home. This didn't eventuate and we continued patrol. It was in fact late at night he had been drinking it's not for me to say but on the face value of the matter it appears he went somewhere else after leaving us and can't account for his actions. He recalls speaking to the Police and has made up this story for reasons unknown to me." On 11 August 1982 a conversation between Sergeant McGufficke and Sergeant Scanes was recorded. Sergeant Scanes said that he asked Mr. Raber for his licence and "surprisingly without undue delay, he gave it to me". He thought Mr. Raber got the licence from his glove box but he could not recall whether it was from the glove box or the wallet. He could not recall seeing a wallet. He did not see any pocket diary in Mr. Raber's possession. He believed that Mr. Raber got out of his vehicle after he (Sergeant Scanes) had completed the radio transmission... He went on to say, "It has become apparent in the past 12 months that 90 per cent of people driving around the city area at that time of night are roaming homosexuals, and I have spoken to countless numbers during that time. It may be this highlighted my suspicion." Asked about the part of his statement where he had said "I believe I handed his licence to Constable Thorn who made the appropriate notation", he replied that he had meant, "Well -30- it's normal practice for me and known to other constables that when they are handed a licence they write down name, address, rego number and other relevant details applicable to the driver". He said he had not seen Constable Thorn write details from the licence nor had he since established that he wrote the details in his notebook. He did not consider Mr. Raber to be drunk although he thought he had far too much alcohol to drive his vehicle. He said that circumstances prevented him from submitting Mr. Raber to a breath test because he was not driving and there was no evidence that he had been. He shouted to Mr. Raber as he was leaving not to come back and drive the car. He had "sat off" the vehicle for "probably five minutes" and thereafter continued normal patrol. When he first spoke to Mr. Raber he saw no injuries on his face. He had not seen any blood on his face. He denied that he had searched the boot of Mr. Raber's vehicle or seen the keys of the vehicle at any time during the night. He saw no broken glass in the vicinity of the vehicle nor any flagons of wine in the back of the vehicle. He resiled somewhat from his statement that he had seen Constable Thorn return Mr. Raber's licence to. him. He said, "Ves, I am of the opinion that he gave it back to him. As I stated earlier there are a lot of these points hazy in my memory and perhaps I am making assumptions, where in actual fact I shouldn't." He denied any knowledge of Mr. Raber's being stopped again on the northern side of Commonwealth Avenue Bridge and being assaulted in Acton Park. He said generally as to the matter, "I find some of it, or rather all of these allegations outlandish, and I can't understand why they have been made." Sergeant Scanes gave evidence before me: Referring to his request that the crew of Hotel 14 should attend to the Albert Hall call he said, "when Hotel 14 came over via. the city station I requested that they attend at the jobs. I was a long way away. I did not hear their reply." Of Mr. Raber's licence he said, "I gave it to Constable Thorn to document particulars from his licence in his notebook." He presumed that Constable thorn had given it back. He said he did not see what actually occurred to it. He said. that he had some difficulty in understanding Mr. Raber but it appeared to him that he was: cursing. and abusing police in general as he left the area. He denied that either he or Constable Thorn had stopped Mr. Raber's vehicle or signalled it to stop on the northern side of Commonwealth Avenue Bridge. In cross-examination it was put to him that the reason he did not subject Mr. Raber to a screening test for blood alcohol level was that, had that occurred, Mr. Raber might well have been seen later that morning by a breathalyzer operator who would have observed his face and doubtless noticed some injuries had been sustained. He denied that that had anything to do with it. He was asked, "Is there any reason why you did not ask Constable Crampton if the engine had been running when he had arrived?" -32- He replied, "Sir, that particular night it was rather busy on the police radio system. I was the only free car on the air apart from Constable Crampton and I saw it as a greater urgency to have Constable Crampton go mobile on the air so that he could attend to any future jobs that came about that night." It was suggested to him that it would have been a simple matter to ask Constable Crampton whether the engine of Mr. Raber's car waS running. He replied, "My concern at that time as I have already told you was to have that vehicle go mobile to attend to any future message sheets that should come from the operations unit." He was cross-examined as to Mr. Raber's conduct as he departed the scene:- "You mentioned that Mr. Raber departed and he was abusive towards the police, is that correct? --- Yes, sir. Can you recall any of the words that he used? --- Not now I cannot, your Honour. To whom were they directed? --- You could not really say they were directed to anyone in particular, there was only Constable Thorn and myself there at that stage. Was his conduct at that point such that he could have been charged pursuant to, for example, the Police Offences Ordinance? --- No there was no language that I could recall, your Worship, I did not find the words threatening or abusive, they. just. appeared to be in an arrogant sort of manner directed towards the police." He had no idea how Mr. Raber got out of his car. After he completed the warrant check he got out of the police vehicle and saw Mr. Raber standing outside his car door facing in the direction of the police. He denied J seizing Mr. Raber, pulling him out by the jumper or striking him. -33- He did not hand Mr. Raber's licence back to him nor did he see Constable Thorn do so. He was asked whether he considered it his responsibility to ensure that the licence was returned. He said, reasonably as I find, that there were certain things he took for granted that a Constable was able to do and one of them was to return [a] licence. He saw no wine flagons in the car and none in the vicinity of the motor vehicle, nor did he see any glass. Asked whether he smelt intoxicating liquor outside the motor vehicle he said only that -he smelt it on Mr. Raber's breath. He said that having. observed Mr. Raber's car for about 5 or 10 minutes after he left he did not see him come back to it and denied any allegation in respect of the incidents alleged to have taken place on the northern side of the bridge. He did not see Constable Thorn tear any pages out of any notebook nor did he see or hear Constable Thorn smash any flagons of wine against a tree. He said that he was not sure whether the transmission at 3.17 a.m.. wherein he said that Hotel 8 was mobile took place at the time he and Constable Thorn left Mr. Raber's car or at the time they subsequently left the Albert Hall. He reiterated that he saw no injuries on Mr. Raber's face although he had been in his presence for some minutes, talking to him. He said that the area was very poorly lit. He said that he was able to work out the details of the licence in the cabin of the car. I understood him to mean the cabin of the police car. _ ~34- Constable Thorn also gave evidence. As to Mr. Raber's licence, he said that he had been under the impression at the time that Sergeant Scanes had given it back to Mr. Raber. He said that he did not have it after the incident. Sergeant Scanes had had the licence in his possession while doing the warrant check and he got the details of the licence for his notebook and was unsure as to whether he had given the licence back to Sergeant Scanes or to Mr. Raber. Save for the fact that he muddled up his words a little when he referred to "sexual acts with offences", having actually meant "sexual offences", he affirmed that his statement, Exhibit H, and the record of his conversation, Exhibit J, with Sergeant McGufficke were correct. He denied that he touched Mr. Raber at any time or that he saw any flagons of wine in Mr. Raber's: vehicle or near it. He saw some glass behind the tree at the rear of Mr. Raber's vehicle but had nothing to do with its being there. .He did not see Mr. Raber's notebook nor his wallet. He saw the licence being handed over. After Mr. Raber had departed from the scene of the initial incident he did not see him again. He denied that the events alleged to have "taken place on the northern side of Commonwealth Avenue Bridge took place. All that impeded his view of Mr. Raber's vehicle as he drove up when Hotel 14 was there was a tree. The engine of Mr. Raber's vehicle was not running and he did not ask anybody whether it had been running. He said that as Sergeant Scanes called up for a warrant check and was waiting for the check to come back he, Constable Thorn, took -35- "possession of the licence to write the details in his notebook. He took the details of the licence when he was standing next to the police vehicle. He had it up close so. that he could have a good look at it. He did not have a torch nor did he need one to see the details on the licence. He stated that he did not take much notice of Mr. Raber's face that evening. However, he noticed no signs of injury on his face. He described his use of the phrase "abusing and cursing us, abusing police in general" as an oversight on his part. He had taken it for granted that Mr. Raber was abusing police. He was just generally saying some words and throwing his arms about. His language was very hard to understand. He denied that Mr. Raber had been pulled out of his vehicle or that he had touched. him at any stage. He denied that he saw the little notebook, Exhibit F, and he denied that he tore any pages out of it. As to the handing back of the licence to Mr. Raber he said, "T am unsure about that. As I have said, it is quite possible I did, but I am unsure about that. At the time I thought Sergeant. Scanes had handed it back." He was referred to questions 88 and 89 of the record of his conversation with Sergeant McGufficke where he had said that Sergeant Scanes had handed the licence back on the night. He was then asked, "Today you have indicated that you are not quite certain what happened to the licence is that right?" He answered, "Tl am sure it was given back to him, yes. It was handed back to him. I was unsure at the time, whether it was Sergeant Scanes or -36- Myself but I do remember the licence being handed back. to him." ~ He then confirmed that his statement made on 11 August 1982 that Sergeant Scanes had handed the licence -back was correct. He recalled giving the licence back to Sergeant Scanes. Subsequently he was asked, "But I thought that earlier in your evidence today you were just not certain who gave it back to Mr. Raber?" He replied, - "That is correct. I had spoken to Sergeant Scanes about it later and I was uncertain then as to whether he had given it back. At the time of the incident I was sure he had given it back." He denied that the licence was never given hack to Mr. Raber at all. He agreed that it would have been his responsibility to hand the licence back either to Sergeant Scanes or to Mr. Raber and he agreed that it would have been incorrect for Sergeant Scanes to think that he had given the licence back to Mr. Raber, He said that he noticed the broken glass near the tree as he walked round the vehicle checking the tyres and the general state of the vehicle. He gave curiosity as his motive for picking up the glass. He could smell no liquor when he examined the glass. He denied that he had smashed: two flagons against the tree. He said that it did not cross his mind during the time he was with Mr. Raber that he might well have been a driver within the meaning of the Motor Traffic (Alcohol and Drugs) Ordinance. He carried out no checks to see whether the engine was warm nor did he ask Constables Crampton or Cantle whether the engine had been running when they were at the scene. -37~ The last evidence to which I must refer is that given first, by Donald Abercrombie Smyth, a medical practitioner. He examined Mr. Raber at 1.25 p.m. on 16 July 1982. _He noted that Mr. Raber had deep purple bruising on the upper lid of his right eye, bruising which he thought to be at least 48 hours old and probably older. He identified the bruising on photograph No.2 of Exhibit C. He thought it was possible that there was some swelling of the lower lip. There was an abrasion on the inside of the right half of the lower lip. He said, "The abrasion had some atypical features. of being bumped against the lower right canine tooth, insofar as it was not what is normally seen - that is one single abrasion - but it seemed to have a wider aspect, some of which looked very recent and some of which looked: not as recent." He asked Mr. Raber whether he had been irritating a previous injury to his lip but Mr. Raber said that he had not. He was asked to point out the abrasion on the photograph, No.1 of Exhibit C. He said, "It is very difficult to see, but there is an abrasion on the inside of the lower lip towards the right side which, even in this photograph, you can see has on the outer edges a mucoid discharge which indicates healing more than - it certainly was not 12 hours old, but in the centre it was very recent - not bleeding at the time, but recently bleeding abrasion; only a very minor abrasion." He made a note that there was.a 'small abrasion on the right side of the bridge of Mr. Raber's nose. He could not see that on the photograph although the photograph indicates one on the left side. He thought the injury to the eye consistent with its having been caused by a blow to that part of the face by a fist or hand. He thought part of the injury to the lower lip similarly consistent with the blow or blows having been struck in the early hours of that morning. He considered the injury to the nose consistent with its" having been caused by some abrading instrument, possibly a scratching fingernail, which had occurred in. the early hours of that morning. . Cross-examined he said that the eye injury played no part in-or could not have been caused by anything which might have occurred between. 3 a.m. and 3.15 a.m. on that morning. He also stated that the original injury to the lower lip could have been caused at the same time as the blow to the eye. He conceded that the scratch should properly have been noted as on the left side. of the face rather than the right but stated that it was nevertheless inconsistent with a blow to the area. He saw no signs of 'recent blows to the face or head, except, possibly, the blow involving the lower lip. He agreed that it would be unlikely that the injuries which he noted would have been noticeable in the dim light of the early hours of the morning assuming that they were then present. He said that the injury to the right eye was difficult to see unless the 'lid was lowered even in a good light. It is to be noted that Mr. Pelle, looking at photograph No.1 of Exhibit Cc, readily located the injury to the right eye and this when the lid was not pictured as lowered. The standard of- proof in disciplinary proceedings against police officers is normally on the balance of probabilities. Seanes v. Wilson, (1974) 22 F.L.R. 262. at ~39- - pp.268-9. Fox J in that case quoted with approval a dictum of Kinsella J, then Chairman of the New South Wales Crown Employees' Appeal Board where he had said, "The onus of proof before this Board of the several charges against the appellant rests upon the commissioner, and the standard of proof is to be measured by the following passage from the judgment of Dixon J as he then was, in Briginshaw v. Briginshaw [(1938) 60 C.L.R. 336, at pp.361-2]: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The: seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved. to the reasonable satisfaction of the tribunal'." In Briginshaw v. Briginshaw, Dixon J went on to say at p.363, "When, in .a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected." In Rv. Police Complaints Board, ex parte Madden, [1983] 2 All E.R. 353, McNeill J said at p.371 .that he accepted that the criminal standard of proof applied to police disciplinary charges. He stated that this seemed to follow from cases such as Bhandari v. Advocates Committee, [1956] 3 All E.R. 742 and Maynard v. Osmond, [1977] Q.B. 240. In the earlier case cited by McNeill J the Privy Council had said, at pp.744-5, "With regard to the onus of proof, the Court of Appeal said: 'We agree that in every allegation of professional misconduct involving an element of deceipt or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in -judgment on a colleague who would be content. to condemn on a mere balance of probabilities.' This seems to their Lordships dn adequate description of the duty of a tribunal such as the Advocates Committee" The reference by McNeill J to Maynard's Case seems to be to a passage from the judgment of Lord Denning M.R. who said at p.251, "... arrangements have been made for the trial in October of the civil action by David O'Connor against Sergeant Hewitson [a police officer}. But it may not be decisive. Much may turn on the burden of proof which would not be the same as in the disciplinary charges." I am not persuaded that the two cases relied upon by McNeill J do more than support an approach to disciplinary charges equivalent to that which, having regard to their grave nature, Briginshaw v. Briginshaw would compel. Consideration of the whole of his judgment: in" Briginshaw v. Briginshaw makes it clear, in my opinion, that when Dixon J used the phrase "except upon criminal issues to be proved by prosecution" he was referring to the ordinary processes of the criminal law and not to cases where an informant or plaintiff set out to prove to a non-criminal tribunal a 'set of facts which, being proved, constitute a criminal offence. The same approach appears in Rejfek v. -41- McElroy, (1965) 112 C.L.R. 517. Nevertheless, because of the grave and weighty consequences of a finding that a police officer has been guilty of something which amounts to a criminal offence, the degree of proof necessary to satisfy "the tribunal of 'the commission of such a disciplinary offence falls not far short of proof beyond reasonable doubt. I am satisfied that Mr. Raber's car was parked initially adjacent to the Albert Hall. This. accords with the message received from the taxi driver and with the evidence led from Constable Crampton.:..It accords also with. the wireless transmission made by one of the crew of Hotel 14 when it was said, "Hotel 14 out of the car Albert Hall". It accords also with the evidence of Mr. Raber. His: evidence does not depend for its accuracy upon his finding again the glass to which he had referred. It follows, therefore, that I do not accept the statements contained by Constable Thorn and Sergeant Scanes in their statements Exhibits H and K that the location at which they extended was respectively "adjacent to the Canberra Hotel" and "opposite the old Canberra Hotel". I have no reason to doubt any of the evidence given by Constables Crampton and Cantle, by Station Sergeant O'Boyle or by Constables Kent and Smeltink. I accept as generally accurate the evidence given by Mr. Nicholl, Mrs. O'Rourke, Mr. Pelle and Dr. Smyth except where I have indicated reservations about their evidence. I accept the truth of the statement made by Acting Chief Inspector Craft. -42- Before proceeding. to a consideration of disputed evidence and of some of the evidence which is not clear cut, _I set ou satisfied. (a) (b) (c) (d) (e) (f£) t a number of circumstances about which I. am The initial location: of Mr. Raber's vehicle at a point near the Albert Hall south of the Commonwealth Avenue Bridge and in front of the third tree "in the line of trees south of that bridge shown in photographs Nos.7 and 8 in Exhibit c. . At 2.48 a.m. a taxi driver reported the presence: of Mr. Raber's vehicle at that location to the police. At 2.50 a.m. Sergeant Scanes in Hotel 8 was requested to look into the matter. Hotel 8 was then at the .far end of Canberra Avenue near HAM.A.S. Harman, About a minute later the crew of Hotel 14 became available for further tasks. Immediately ox almost immediately thereafter Sergeant Scanes requested his Headquarters to assign the crew of Hotel 14 to the investigation. Whatever supervisory role Sergeant Scanes had on that morning it was not a role which prevented him carrying out such investigations as that into the silent alarm at the "Rules Club, Canberra Avenue, Manuka", (9) (h) (i) (3) (k) (1) ~43- There was no suggestion in the record of wireless. traffic that the message concerning the car at the Albert Hall was directed to Sergeant. Scanes as supervisor because all other cars were attending to messages. (That is not to say that what Sergeant Scanes said in his statement, Exhibit kK, concerning that may not in fact have been correct.) When Constables Crampton and Cantle left the scene by not later than 3.02 a.m. Mr. Raber was still in his car. When Constables Crampton and Cantle left the scene Mr. Raber had no sign of blood on his face. At all material times: Mr. Raber was under the influence of intoxicating liguor but not to such a degree that he could not remember any of the incidents which took place. Witness his recollection of the inspection of the exterior of his car, an inspection to which Constable Thorn also deposed. It is most likely that Mr. Nicholl, having left Colbee Court, Phillip at) 3.20 a.m., reached the point north of Commonwealth Avenue Bridge where he first saw Mr. Raber by not later than 3.35 a.m. and probably as early as 3.30 a.m. Constable Kent a few minutes earlier had traversed a distance from the Woden Valley Hospital to the City Police Station parking area, a distance which could not have been much different from that traversed by Mr. Nicholl from Colbee Court, (0) (P) (q) (r) injuries ~44—- Phillip to the point where he saw Mr. Raber, in just under eight minutes. When Mr. Nicholl first saw Mr. Raber, Mr. Raber had blood on the lower part of his face which had not stopped bleeding but was not bleeding freely. Mr. Raber gave evidence, evidence which was unchallenged and not objected to, indeed partly led by counsel for the two officers, that he had complained to Mr. Nicholl that the police had hit him and he didn't know why. When first seen by Mrs. O'Rourke on the morning of 16 July 1982 Mr. Raber's face was bruised. Sergeant Scanes in noticeably bigger than Constable Thorn. The smell detectable on Mr. Raber's breath and from. inside his car was of wine fumes. There was no smell of intoxicating liquor apparent from any source outside Mr. Raber's car when Hotel 8 arrived at the scene near the Albert Hall. The light was good enough to enable. Constable Thorn, standing outside a car, to. take particulars of Mr. Raber's licence without a further light source and to enable the state of Mr. Raber's fly to be observed, On all the evidence I am satisfied that the to Mr. Raber's mouth and nose were sustained between 3.02 a.m.- and 3.35 a.m. on the morning of 16 July 1982. There is a preponderance of lay evidence from Mr. Pelle, Constable Crampton and Mrs. O'Rourke that there were -45- no visible marks on Mr. Raber's face which were or could have been present the day before. The injury to his eye is the sort of injury which would have been obvious to anybody had it been present the day before. I do not impugn Dr. Smyth's honesty but I am not prepared to reject the evidence just referred to in favour of his opinion. In any event, his opinion although modified in cross-examination is consistent with the receipt by Mr. Raber of the injury to his mouth in the early morning of 16 July 1982. There is no set of circumstances put forward which would enable me to say that in.a little more than 30 minutes from the time of the departure of Constables Crampton and Cantle another incident, as to which no credible suggestion is made, took place and resulted in the injuries. received -by Mr. Raber. Circumstances therefore lead me to the conclusion that the injuries were inflicted in some such manner as Mr. Raber claims. I accept, that in these circumstances, leaving aside the question of credibility of witnesses, such "circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation". Briginshaw vw... Briginshaw, at p.368 per Dixon J. Nothing in the evidence suggests that the injuries received were sustained in a fall and I consider the suggestion that they were self-inflicted to be absurd. I have tried to think of some other probable explanation for them but cannot, -46- Had Mr. Raber continued in a southerly direction as the evidence by Sergeant Scanes and Constable Thorn indicated, it is not probable that he would have been on the northern side of Commonwealth Avenue Bridge at the time indicated. His story as to what happened is entirely consistent with the known time span. I turn to the question of credibility. There were discrepancies (some serious) in Mr. Raber's evidence. I do not accept his disclaimers: regarding his drinking habits. Some of the matters of which he gave evidence were nat borne out entirely by the physical facts. As an example, his evidence concerning the breaking of two flagons is not supported by the amount of glass seen at the base of the tree. On. the other hand, it would. Se an extraordinary coincidence if part of the glass found at the base of the tree had that label on it which one would have expected to find, if Mr. Raber's story were basically correct, - following his purchase of claret of just that Kaiser Stuhl brand the day before from Mr. Pelle. The explanation that may well accord with the accepted facts is that Mr. Raber and his erstwhile companion drank the contents or almost all the contents of one flagon leaving it opened. This would account for the smell of wine from within the car. The full and empty flagons were taken from 'the car by Constable Thorn but he smashed only the empty one. This would account for the lack of any indication of spilt wine near the tree, of lack of damage. to its bark and of wine on the pieces of glass found. I can readily accept that Mr. Raber mistakenly thought he saw both. flagoms being broken, -47- I did not have the impression at the end of all Mr. Raber's evidence that he was telling lies about the matters which lie at the core of these charges. Nor did I gain the impression that he was attempting to harm two 'police officers from malice, as that word is ordinarily used. Indeed, he gave me the impression that he was labouring under a sense of genuine grievance for, as he said and as I have earlier quoted, "the police are not allowed to smack the people". I gather that Mrs. O'Rourke may well have been the moving spirit in his complaint as reference to the direct quotation from her evidence which I have set out | above indicates. One of the matters I have had much difficulty in understanding is why it was necessary in any event that Sergeant Scanes should involve himself in the incident at all. There is no suggestion that Constables Crampton and Cantle were not competent to carry out the task involved, a task which must have ranked low in the scale of police inguiries. Another aspect of the police evidence which gave me pause was the allegation that. Mr. Raber gave the appearance of cursing and abusing police in general. [In his first statement Sergeant Scanes said that Mr. Raber had walked off towards the new Parliament House site saying words he (Sergeant Scanes) could not understand. In his evidence he said, "It appeared to me that he was cursing and abusing police in general as he left the area". Constable Thorn said in his first statement, "He [Mr. Raber] then went off abusing police loudly". In his interview with Sergeant -48- McGufficke he said, "The last time he went off, abusing and cursing us. Abusing police in general." Asked before me whether he could remember the words Mr. Raber was using, Constable Thorn said, "No, an oversight on my side, I took it for granted that he was abusing police. He was just generally saying some words and throwing his arms: about and I took it as he was abusing police, abusing us in general." He said that Mr. Raber was walking off shouting at the same time but that his language was very hard to understand at that stage, I would not consider these discrepancies of great importance by themselves and, indeed, place little reliance upon them. However, they indicate, in my opinion, an attempt to denigrate Mr. Raber more than was appropriate.. There was nothing in the demeanour of Constable Thorn which assisted me one way or the other in deciding where the truth lay. On the other hand, I found myself unable to accept Sergeant Scanes. I would hesitate long -before proceeding to find a serious Matter proven against a person on the basis of his demeanour when giving evidence. However, when that demeanour is coupled with what seems to be a very strong circumstantial case, IT am the less hesitant about using it in support of the views to which, in these cases, I have finally come. I turn to the individual offences. I am satisfied that Charge No. A.F.P. 51/8283 has been made out against Sergeant. Scanes. I. consider it possible that when Sergeant Scanes struck Mr. Raber he had a baton in his hand but I do not think that the baton was the. primary weapon used. Mr. Raber's evidence concerning the assault on him near the Albert Hall is not sufficient to satisfy me to the requisite degree that Constable Thorn assaulted him as alleged. He may have assaulted him in some way but I am not satisfied as to this. I therefore dismiss Charge No. A.F.P. 54/8283. While I am satisfied that some incident: involving force may well have taken place in Acton Park during what might be described as the second incident, I am nat satisfied that Charges Nos. A.F.P. 52/8283 and 55/8283 are sufficiently made out against Sergeant Scanes and Constable Thorn. Mr. Raber's. evidence. as tor this. incident was; somewhat vague and I am not prepared to find, having regard to the appropriate standard of proof, that the charge was made out. As to the charges relating to Mr. Raber's driver's licence, Charges Nos. A.F.P. 53/8283 and 57/8283, I am satisfied that Constable Thorn, having taken the appropriate particulars from the licence, returned it to Sergeant Scanes. I am satisfied, too, that Sergeant Scanes failed to return it to Mr. Raber. Applying a standard of proof not as high as in respect of the other offences but still high, I find on the balance of probabilities Charge No. A.F.P. 53/8283 proved against Sergeant Scanes but dismiss Charge No. A.F.P.57/8283 against Constable Thorn, ~50- I.find Constable Thorn guilty of the disciplinary offence in relation to Mr. Raber's diary or notebook (Charge No. A.F.P. 58/8283). The diary shows two pages to be missing and I accept. what Mr. Raber said concerning this matter. It is a bizarre incident, so bizarre that I cannot accept that it did not happen as Mr. Raber said it did. I find Charge No. A.F.P. 56/8283 against Constable Thorn proven to the extent of the taking of the two flagons and the deliberate breaking of one. I. am unable to determine the ultimate fate of the second flagon. I was quite unable to accept Constable Thorn's evidence concerning his discovery of the glass and am satisfied. that something very like. what I have suggested above took place. xcept in respect. of Charge No. A.P.P. 53/8282, 1 have been satisfied beyond reasonable doubt of the commission of the offences found proven but in reaching these decisions I have applied, not the criminal onus of proof, but that set out in Scanes v. Wilson (Supra), bearing in mind the gravity of the relevant charges. No case was sought to be made under Regulation 18(2). While it seems that such a case may have been made out in respect of at least some of the matters charged, T think it inappropriate to deal with the offences charged in any way other than that in which they were presented before me. ~Si>. Finally, I think': should. say that no. blame apparently attaches to any one in authority for the delay in the institution of these proceedings. Mr. Raber's term of imprisonment serves to explain most if not all of that delay. I certify that thia and the ff ty preceding Pease aye a true eopy of the Reasons for saat herein of bis Honou Mr. Justices Kelly - LO Nerwnar Associata Dated: 7" Deamley 1993 IN THE FEDERAL POLICE , ) ) No. 7 of 1983 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SERGEANT WARREN DAVID SCANES IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 ORDERS THE PRESIDENT (KELLY J) 23 DECEMBER 1983 CANBERRA. A.C.T. 1. THE TRIBUNAL ORDER THAT:- In respect of the disciplinary offence alleged in Charge No. AFP.51/8283, namely:- , That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did seize Danilo RABER and pull him out of his motor vehicle and then did strike him about the head with his hand. ' of which he has been found guilty, Sergeant Warren David Scanes be reduced to the grade of Senior Constable within the rank of Constable in the component of the Australian Federal Police performing general police functions, the reduction in rank to take effect from this day. 2. "nQ- In respect of the disciplinary offence alleged in Charge No. AFP.53/8283, namely:- That he was careless in the discharge of his duties contrary to the provisions of paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, having required Danilo RABER to produce for inspection his licence to drive a motor vehicle and the said Danilo RABER having so produced his licence, he failed to ensure that the said licence was returned to him. of which he has been found guilty, Sergeant Warren David Scanes be reprimanded. IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL REASONS FOR PENALTY 23 DECEMBER 1983 ) ) No. 7 of 1983 ) THE COMMISSIONER OF POLICE against SERGEANT WARREN DAVID _SCANES IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 KELLY J On 9 December 1983 I made findings that Sergeant Warren David Scanes (Sergeant Scanes) was guilty of two disciplinary offences particularised in my formal findings. I found him not guilty of a third disciplinary offence with which he had been charged. Put shortly, he was found guilty of improper conduct in his official capacity in that he assaulted one Danilo Raber and of being careless in the discharge of his duties. in that he failed to return to Danilo Raber the driver's licence which he had required him to produce. My detailed reasons for the findings I made are set out in the reasons published on 9 December 1983. I will not repeat them. They may be considered to be incorporated, so far as is necessary, in these reasons. By virtue -of the provisions of s.67(3) of the Complaints (Australian Federal Police) Act 1981 (the Act) the Tribunal, when constituted by the President or a Deputy © President, may, if it finds a member of the Australian Federal Police guilty of breaches of discipline and subject to ss.67(5) and (7) of the Act, impose on him in respect of those breaches such penalties as it deems fit provided that they are penalties which the Commissioner would have had power to impose upon the member under the prescribed Regulations if he had heard and determined the proceedings and found the member guilty of the breaches of discipline. Accordingly, in these cases, the Tribunal has power to:~ (a) reprimand Sergeant Scanes; (b) impose on him a fine in respect of each offence not exceeding an amount equal to the salary payable to him for a period of 5 days at the rate at which salary is payable to him on the day on which the determination is made; {c) reduce his annual rate of salary to an amount per annum not lower than the lowest annual rate of salary payable to members holding the same rank as he; (d) reduce him to a lower rank (in Sergeant Scanes' case this could only be to a grade within the rank. of Constable since the rank of Sergeant which he presently holds is the lowest grade within the rank of Sergeant); or (e) dismiss him from the Australian Federal Police. (Regulation 22 of the Australian Federal Police (Discipline) Regulations (the Regulations) .) Before the Tribunal may impose a penalty upon a member under s.67(3) of the Act it is required by s.67(5) to consult with the Commissioner or with another member of the Australian Federal Police nominated by the Commissioner with respect to the penalty that it would be appropriate to impose in respect of the particular breach of discipline. Having handed down my findings as to guilt, I communicated with the Commissioner to advise him of those findings and to institute the consultation required by s.67(5) of the Act. The Commissioner nominated Deputy Commissioner Farmer as the member with whom I should consult and in due course Deputy Commissioner Farmer communicated his views on the appropriate penalty to me. I did not consider it necessary to communicate further with him. Because I considered it might be appropriate to impose a penalty of reduction in rank or dismissal upon Sergeant Scanes I gave him the notice required by s.67(7) of the Act. He duly responded. I have taken into account both the views expressed by Deputy Commissioner Farmer and the matters contained in the written statement furnished by Sergeant Scanes under s.67(7). Sergeant Scanes adopted the course of annexing to his statement for consideration with it copies of assessments and reports made of and on him during his police career and of material which indicated that he had been commended on a number of occasions for work done as a police officer together with a substantial number of original | references. I also heard oral submission as to penalty from counsel for Sergeant Scanes. I have ignored a critical comment made on him which seemed to me to be based on materials which according to ordinary sentencing principles should have been disregarded as insufficiently based on proven facts. In the earlier case of the Commissioner of Police v. Donaldson in which I handed down reasons on 1 September 1982 I accepted that the rank of Sergeant (Sergeant Scanes was an acting Sergeant at the time of the offences in question) is an important one within the police service reguiring the holder to exhibit a number of qualities, not the least of which are dependability, leadership, awareness of his role as a leader of a group, integrity and loyalty. He may be required to induct new members to areas of responsibility, maintain discipline and welfare, supervise work. and results obtained by the group under his control, issue and account for specialised equipment, prepare and conduct 'training programmes and assess and develop subordinates. It is said that he must be a person in whom subordinates have complete faith, based upon the knowledge that he has shown that he deserves their respect and trust because of his diligence, reliability, good conduct and commonsense. | Considered against that standard, I am satisfied that Sergeant Scanes' conduct on the morning of 16 July 1982 fell far short of that which might reasonably be expected of a Sergeant of the Australian Federal Police. "It fell short to such an extent that, without more, it would warrant dismissal. The material placed before me makes it possible to make an assessment of Sergeant Scanes as a police officer. (I mention, so that I may discard it from consideration because it happened so long ago, one matter that constitutes a blot on his record. It is discussed at length in the well known case of Scanes v. Wilson (1974) 22 F.L.R. 262. At the time of the incidents with which that case was concerned he had been a police officer for just over 18 months.) Sergeant Scanes was born on 1 January 1949. He is married. He was appointed in the rank of Constable to the Australian Capital Territory Police Force on 10 May 1971. He was promoted to the rank of Constable First Class in that Force on 10 May 1976 and to the rank of Senior Constable on 19 May 1978. On 19 October 1979 he was appointed to the Australian Federal Police and on 30 September 1983 "was promoted to the rank of Sergeant. He was acting in that rank on 16 July 1982, had been so acting for some time and no doubt continued so to act until he was promoted to the substantive rank of Sergeant. In his 12¢ years service he has carried out Embassy duty, general duties, mobile patrol duties and has served in Operations, the Transport Unit and in Communications where he is presently serving. I do not propose to go through in detail the various assessments made of him during his service. However, I set out two such assessments to indicate his development as a police officer. In a report on him dated 4 August 1973 it was said of him, "His knowledge of operations room procedures is very good. Very limited in- practical police work. If he continues to improve as in past should develop into a practical Police Officer." Assessed for promotion on 11 November 1981 he was reported on as follows:- "The member has 104 years service in the ACT/AFP and has been employed in various aspects of the uniform branch in the ACT. He has fairly lengthy experience in Communications from an operations point of view. He has also has responsibilities in the Transport Unit -6- and with the Juvenile Aid Bureau. He is presently acting as a Sergeant in the General Duties area of City Branch. He is highly reported upon by his Division as being competent and capable of carrying out the duties of an NCO although he does indicate that he has sought clarification of certain aspects of his Divisional Assessment. The candidate is an experienced supervisor who has a good arrest record and could be described as an active and efficient member of the force." Sergeant Scanes is presently an applicant for advancement to the rank of Senior Sergeant. He has been recommended as suitable for that advancement. He has received high commendation for the bravery he displayed during an incident on 30 April 1982 when a man threatened to blow himself up with his three children. On reading the material placed before me, I was able to form a very clear picture of Sergeant Scanes as a police officer. One report by a police officer whom I know and whose opinion in this area I respect described him as "an experienced 'street policeman'". The descriptive phrase carries with it the implication that Sergeant Scanes is capable of handling the difficult situations that frequently arise in the life of a policeman whose beat involves him with criminals and what is frequently described in police reports as the "hoodlum element". Such policemen very often have a high arrest rate, as Sergeant Scanes has, and are frequently in situations where courage and coolness are demanded. They seem to have the happy knack of being at or near a place where trouble is likely to break out and, when it does break out, of being able to bring it under control quickly. One has known soldiers with the same knack. At the scene of trouble they are, as Sergeant Scanes was described in one rating report, "prepared to get involved", Such men who are frequently in danger and often under tension may be described as a hard professional core of those whose lives are dedicated to keeping the peace and ensuring the safety of the lives and property of the people they guard. But their very good qualities put them at risk. Used to dealing so often with criminals or those on the verge of criminality, often described as the "hoodlum element", there is a temptation to deal with a problem on the spot in a way that might not always attract approval. I recognise that the work of such a policeman demands continuing patience, courage and adroitness at handling difficult situations. The ability to display those qualities day after day, year in and year out, is something the community demands of its police officers. It is not to be wondered at if occasionally the high standard the community sets and which the policemen of this Territory almost invariably attain, as my observation over many years has shown, is sometimes lowered by an unfortunate incident. The course which the investigation of the offences before me took has prevented me from probing into the matters which may have caused Sergeant Scanes to act as he did on the morning of 16 July 1982. However, I can now, I think, take into account a fact which I was unable to consider before reaching my findings on the incident involving Mr. Raber. The same morning, within an hour and a half, Sergeant Scanes was involved in another act of impropriety, not gross, when he failed again to return a licence to a driver of whom he had demanded it. He has admitted a disciplinary offence in respect of that incident. Although I do not regard it seriously, it seems to be out of his general character as a police officer. On consideration of the whole of the matters which I find to have occurred on the morning of 16 July 1982, I think that something caused Sergeant Scanes to act in a manner foreign to his ordinary character. I cannot say what it was but I am satisfied that his course of conduct over the whole morning can only be explained in some such fashion. It is regrettable that Sergeant Scanes did not see fit to initiate action against Mr. Raber under the Motor Traffic (Alcohol and Drugs) Ordinance 1977 as it seems he might well have done with entire propriety. I do not think the community demands the dismissal of Sergeant Scanes for what I see to have been an instance of aberrant behaviour. I am supported in this view by many testimonials from his colleagues and by a number of testimonials from others, not police. Many of those others I know and I feel bound to accord respect to their opinions. After careful consideration I have reached the conclusion that to dismiss Sergeant Scanes from the police force would be to impose upon him far too great a penalty. I propose instead to reduce him to the rank of Senior Constable in the grade of Constable. Lest it be thought that this is a light penalty, I point out that it will mean a substantial reduction in his salary and status (a status he has had for some years) and the destruction, at least for a time, of his hopes of promotion to the rank of Senior Sergeant. What he did constituted .a lamentable departure from the standard required of a police officer of his rank. I am, however, persuaded that the severe punishment which [I now impose is sufficient to demonstrate the disapproval which such conduct merits and yet saves for the community the services of a police officer whom I am satisfied will' continue to render good and courageous service. The penalty is to be applied in respect of Charge No. AFP.51/8283. I think the appropriate penalty in all the circumstances in connection with the charge of carelessness (No. AFP.53/8283) is a reprimand. I order accordingly. . ard me oak I certify that this astm HY i preceding pages area metry of the Reasons for Me Poralhy herein of His Honour Mr. Jusha Kelly. - "IN THE FEDERAL POLICE.) ) No. 8 of 1983 DISCIPLINARY TRIBUNAL) THE COMMISSIONER OF POLICE against CONSTABLE KELVIN GEORGE THORN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 ORDERS THE PRESIDENT (KELLY J) 23 DECEMBER 1983 CANBERRA. 1. First A.C.T. THE TRIBUNAL ORDER THAT:- That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did remove 2 flagons from a vehicle owned by Danilo RABER and then did break one of the said flagons Constable Kelvin George Thorn pay within calendar months a fine equal to the salary payable to him for a period of 5 days at the rate payable this day. In respect of the disciplinary offence alleged in Charge No. AFP.56/8283 to the extent to which he has been found guilty, namely:- -2- 2. In respect of the disciplinary offence alleged in Charge No. AFP.58/8283, namely:- That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western Side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did tear two pages from a pocket diary owned by Danilo RABER of which he has been found guilty, First Constable Kelvin George Thorn be reprimanded. IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL REASONS FOR PENALTY 23 DECEMBER 1983 ) ) No. 8 of 1983 ) THE COMMISSIONER OF POLICE against CONSTABLE KELVIN GEORGE THORN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 KELLY J On 9 December 1983 I made findings that Constable (now Constable First Class) Kelvin George Thorn (Constable Thorn) was guilty of two disciplinary offences particularised in my formal findings. I found him not guilty of three other disciplinary offences with which he had been charged. Put shortly, he was found guilty on two charges of improper conduct in his official capacity in that he removed two flagons from the vehicle of one. Danilo Raber and broke one of them and that he tore two pages from a pocket diary owned by Mr. Raber. My detailed reasons for the findings I made are set out in the reasons published on 9 December 1983. I will not repeat them. They may be considered to be incorporated, so far as is necessary, in these reasons. By virtue of the provisions of s.67(3) of the Complaints (Australian Federal Police) Act 1981 (the Act) the Tribunal, when constituted by the President or a Deputy President, may, if it finds a member of the Australian Federal Police guilty of breaches of discipline and subject to ss.67(5) and (7) of the Act, impose on him in respect of those breaches such penalties as it deems fit provided that they are penalties which the Commissioner would have had power to impose upon the member under the prescribed Regulations if he had heard and determined the proceedings and found the member guilty of the breaches of discipline. Accordingly, in these cases, the Tribunal has power to:- (a) reprimand Constable Thorn; (b) impose on him a fine in respect of each offence not exceeding an amount equal to the salary payable to him for a period of 5 days at the rate at which salary is payable to him on the day on which the determination is made; (c) reduce his annual rate of salary to an amount per annum not lower than the lowest annual rate of salary payable to members holding the same rank as he; (d) reduce him to a lower rank (in Constable Thorn's case this could only be to the grade of Constable within the rank of Constable); or (e) dismiss him from the Australian Federal Police. (Regulation 22 of the Australian Federal Police (Discipline) Regulations (the Regulations).) Before the Tribunal may impose a penalty upon a member under s.67(3) of the Act it is required by 8.67(5) to consult with the Commissioner or with another member of the Australian Federal Police nominated by the Commissioner with respect to the penalty that it would be appropriate to impose in respect of the particular breach of discipline. Having handed down my findings as to guilt, I communicated with the Commissioner to advise him of those findings and to institute the consultation required by s.67(5) of the Act. The Commissioner nominated Deputy Commissioner Farmer as the member with whom I should consult and in due course Deputy Commissioner Farmer communicated his views on the appropriate penalty to me. I did not consider it necessary to communicate further with him. Because I considered it might be appropriate to impose a penalty of reduction in rank or dismissal upon Constable Thorn I gave him the notice required by s.67(7) of the Act. He duly responded. I have taken into account both the views expressed by Deputy Commissioner Farmer and the Matters contained in the written statement furnished by Constable Thorn under s.67(7). Constable Thorn adopted the course of annexing to his statement for consideration with it a substantial number of original references. I also heard oral submissions as to penalty from counsel for Constable Thorn. Constable Thorn was born on 22 January 1955. He is married. He has been posted recently, for personal reasons, to Queensland. He is described as having displayed in his short time in the Australian Federal Police a degree of enthusiasm and ability well above average. He was promoted to the grade of First Constable on 10 September 1983. He is well regarded by his present superior. I have taken into account the references which Constable Thorn furnished. They show the high regard in which he is held and are made by men of standing. It is not suggested that I should dismiss Constable Thorn from the Australian Federal Police. Because I think that his superior must bear much the larger share of the blame for the whole sorry incident, I am the more prepared to deal leniently with Constable Thorn. In all the circumstances I think the appropriate penalty to impose is a fine of the maximum amount in respect of the charge relating to the flagons (Charge No. AFP.56/8283). I think it is sufficient to reprimand him in connection with the charge relating to the pocket diary (Charge No. AFP.58/8283). I order accordingly. -4 thi s sxe y tm i eppe copy of the ——— a iy hece.: nof bis Honour Reasons for Penal Mr. Justice Key Associate |