; or) JUDGMEN! No. EP 2 sul 182 IN THE FEDERAL POLICE ) ) No. 13 of 1982 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against RAYMOND JOHN BROWN" DECISION TRIBUNAL: Mr R.J. Cahill S.M. DATE: 23 March 1983 THE TRIBUNAL DECIDES THAT:- 1. Raymond John Brown is guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP:18/8283. 2. Raymond John Brown is guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP: 19/8283. De Raymond John Brown is guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP: 20/8283. 4. Raymond John Brown is guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP: 22/8283. Sis Raymond John Brown is guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP:23/8283. 6. Raymond John Brown is guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP:24/8283. 7 Raymond John Brown is not guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP: 16/8283. o0e2/- 10. Raymond John Brown is not guilty of a breach of discipline alleged in the notice dated 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP: 17/8283. The breach of discipline alleged in the notice dated' 29 October 1982 signed by the Commissioner pursuant to Regulation 19 of the Australian Federal Police (Discipline) Regulations, and which bears identification number AFP: 21/8283 is withdrawn. The proceedings be remitted to the Commissioner for the imposition of a penalty on Raymond John Brown in respect of the said breaches of discipline. R.J. CAHILL S.M. Member IN THE FEDERAL POLICE ) ) No. 13 of 1982 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against ad SENIOR SERGEANT RAYMOND JOHN BROWN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR DECISION R.J. CAHILL, S.M. 23 March 1983 This matter relates to the Australian Federal Police Disciplinary Tribunal hearing in respect of Sergeant Raymond Brown. Before proceeding to consider the actual charges in detail, during the hearing there was a challenge to the admissibility of certain evidence given before the Royal Commission and marked exhibit K subject to objection. Before giving my full reasons and my decision I should give my ruling on that. I indicated at the prima facie case level that I would do it at this stage. In respect of matters related to the charges before this tribunal, Sergeant Brown gave evidence before the Royal Commission into the Meat Industry on 14 July 1982. The admissibility of this evidence was objected to by Mr Higgins on behalf of Sergeant Brown. The basis of the objection was said to be one in principle founded upon questions of fairness, my general discretion to exclude and matters of public policy. Mr Higgins placed general reliance upon the High Court decision of Bunning -v- Cross 19 ALR 641 - in particular «+ /2. the joint judgment of Gibbs C.J. and Stephen J. pages €57 ff where the public policy considerations are considered for the admission or rejection of evidence. eH Both Mr Higgins for Sergeant Brown and Mr Vickery on behalf of the Commissioner referred to section 6DD of the Royal Commissions Act 1902. That particular section refers to the use that may be made of evidence given by persons at a Royal Commission. Section 6DD provides: "6pD. A statement or disclosure made by any witness in answer to any question put to him by a Royal Commission or any of the Commissioners shall not (except in proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any Commonwealth or State Court or any Court of any Territory of the Commonwealth." The section restricts the use of the evidence given at a Royal Commission in courts of the Commonwealth or states in relation to both civil and criminal proceedings. As a matter of construction, it cannot be said that the proceedings in this tribunal are before a court or courts such as specified in section 6DD of the Royal Commissions Act. Further, I am satisfied that these proceedings could not be described as civil or criminal proceedings. Support for that view is the decision of Williamson -v- Morrison 40 ALR 335 - Morling J. The case concerned an appeal against a finding of guilt for a disciplinary offence under the Public Service Act 1922. Section 6DD could not assist Mr Higgins in having the evidence given at the Royal Commission by the sergeant excluded. Section 6DD does in fact delineate the limits on the use of Royal Commission evidence in subsequent proceedings. ./3. Mr Vickery, for the Commissioner of Police, argued sections 76(2) and (3), 7(5) and (6), 67(1) and (2) of the Complaints (Australian Federal Police) Act indicated the legislative intention in respect of the procedure and function of this tribunal (in dealing with disciplinary offences by Australian Federal Police officers) to abrogate the same normal common law protections such as the right to silence, the right against self-incrimination, strict appliance to the rules of evidence and the like. It is quite clear this tribunal is given a wider investigative function in its consideration of disciplinary offences pursuant to the act than a court presiding over and determining ordinary criminal offences or civil proceedings. Further, the High Court of Australia has recently reaffirmed that the right or privilege against self-incrimination exists and operates in respect of a Royal Commission hearing - see Hammond -v- The Commonwealth of Australia and Others - 42 ALR 327. It is clear, on the evidence here, that Sergeant Brown made a proof of evidence to Mr McPhee QC, the officer assisting the Royal Commission. He did so in circumstances where he clearly chose to come to reveal all rather than risk committing perjury at the Royal Commission. He made no claim of self-incrimination, although prior to the decision of Hammond -v- The Commonwealth, perhaps that right, might not have been as clearly by denunciated as it is now. The High Court decision was handed down in August 1982 whilst the sergeant gave evidence in July 1982. ve a l4s I reject Mr Higgins submissions specifically that the Royal Commission evidence is not probative and merely repeats other evidence contained in the hearing. The cross-éxamination of Sergeant Brown by Mr McPhee bears particularly closely upon Sergeant Brown's state of mind and awareness of any Australian Federal Police interest or concern in the subject meat company which is said to have given gifts of meat to the sergeant. In the consideration of all the matters I have mentioned and in particular the wider role of this tribunal in hearing disciplinary offences, I exercise my discretion to admit that evidence. The evidence given by Sergeant Brown at the Royal Commission forms part of the evidence upon which I make my decision in this matter. Turning specifically to the charges against Sergeant Brown. Charge 21 of 1982/83 has been withdrawn and I formally pronounce that order. The balance of the charges can be conveniently categorised into three groups. The first group is charges 16 and 17 of 1982/83 and those respectively involve offences under different legislation but amount to the same substantive offence. The second group of charges are charges 18 and 19 of 1982/83 which are charges against regulation 7 of the Australian Federal Police Disciplinary Regulations alleging a false statement wal Dis in the course of the sergeant's duty. The final group of charges which comprise charges 20, 22, 23 and 24 of 1982/83 comprise charges also pursuant to regulation 7 involving misleading statements by Sergeant Brown in the course of his duty. The last two groups of charges involve certain statements made and answers to questions in records of interview by the Internal Investigations Division of the Australian Federal Police investigating allegations against Sergeant Brown. Charges 16 and 17 Charge 16 is made pursuant to regulation 18(1)(a) and regulation 15 of the Australian Federal Police Disciplinary Regulations. However the substantive offence is against regulation 1S Regulation 15 of those regulations provides; "15. A member shall not directly or indirectly solicit or accept a gift of gratuity from a person concerned directly or indirectly with any matter in which the Australian Federal Police, or the member in the performance of his duties, is interested or concerned." The charge alleges that in Melbourne in Victoria on various dates between 19 October 1979 and 19 May 1980 the sergeant directly accepted various gifts from a person 9r persons unknown employed by or at the premises of Steiger's Meat Supply (Australia) Pty. Limited in Melbourne, Victoria; such person or persons being concerned indirectly with the matter in which the Australian Federal Police was interested or concerned. Charge 16 relates to a period of Sergeant Brown's service with the Australian Federal Police which came into existence and a force of which he became a member on 19 October 1979. The activity 3 «of 6 was also alleged to have taken place prior to 19 October 1979 whilst Sergeant Brown was a member of the Commonwealth Police and charge 17 covers this earlier period from a date in 1978 which is unspecified until 19 October 1979, the date when the sergeant ceased to be a member of the Commonwealth Police and became a member of the Australian Federal Police. Pursuant to the transition provisions of the Complaints (Australian Federal Police) Act and the regulations thereto, in particular Section 67(2) and regulation 2(2)(b) (i) the tribunal has jurisdiction to deal with these charges. Charge 17 is brought pursuant to regulations 13(h) and 21 of the Commonwealth Police Regulations. Regulation 21 which creates the offence is identical in form to regulation 15 of the Australian Federal Police Disciplinary Regulations. A course of conduct is alleged extending over the sergeant's involvement with two police forces with different legislative provisions covering his service with each force the unfortunate situation arises that he is charged with two separate offences. The defence specifically abandoned during the hearing any question of duplicity of the charges which may well have arisen if this matter had been heard in a criminal court. Duplicity may have arisen either in respect of the two separate charges or out of the allegation that 25 - 30 separate receipts of meat where alleged. -oe/T. Regulations 21 and 15 require the Commissioner to prove, on the balance of probabilities, with due regard to the seriousness of the allegation, the possible effect upon the person charged and other matters such as set out in Scanes -v- The Commissioner of Police reported in 3 ACTR 20, the following elements: lis In this case acceptance directly of various gifts of meat. 2. From such person or persons concerned indirectly with the matter in which the Australian Federal Police was interested or concerned. There is no allegation that the member himself, namely Sergeant Brown, had any interest or concern. The charge is based on the Australian Federal Police having interest or concern. 3s The member must be shown to have had actual or constructive knowledge of the matter in which there is Australian Federal Police interest or concern and also that the Australian Federal Police had such interest or concern in that same matter. 4. The interest or concern mentioned must be shown to be reasonably contemporaneous with the acceptance of the gift in each case or in this case, the period where gifts of meat were accepted. ~ 6/8. The last two elements mentioned are not obvious from the actual text of the regulations. To give the regulations a realistic operation, these elements must be included otherwise completely innocent, blameless conduct could constitute an offence without any awareness on the part of the member concerned of the interest or concern of the Australian Federal Police in the matter. The evidence in relation to the charges 16 and 17 of 1982/83 comes from a number of sources. Firstly there are four records of interview, two with Sergeant Kemp and two with Sergeant Lewington. Secondly there is a statement tendered in this case but made initially by Sergeant Brown to Mr McPhee to be presented as a proof of evidence to the Royal Commission. Thirdly there is Sergeant Brown's own submissions submitted to the Commissioner and tendered in this case. Fourthly the evidence Sergeant Brown gave at the Royal Commission. Finally there is the sergeant's own sworn evidence before this tribunal. As much of the evidence is undisputed I do not propose to refer to it in all detail. The only issues really canvassed on the evidence by the defence are (1) can the Commissioner prove that there was an interest or concern by the Australian Federal Police? (2) Was that interest or concern reasonably contemporaneous with the acceptance of gifts by the sergeant? (3) Can it be said that the sergeant had actual or constructive knowledge of the interest or concern of the Australian Federal Police if it did exist? scageh Ve Some admissions were made by the sergeant in questions 74 to 79 of the record of interview of 24 August 1982 (Exhibit E) to Sergeant Lewington. In summary form it presents the sergeant's involvement with various investigations into the company or more correctly the people in the company that have given him gifts of meat. Before this tribunal the sergeant has never disputed that from about mid to late 1978 through until about April 1980, shortly before he was transferred to Canberra, on 24 or 25 occasions he received gifts of free meat from persons at the Steiger's meat works in Melbourne. There is uncontradicted evidence that the sergeant himself in 1976 had conducted an inquiry involving Steiger's in relation to boning in the absence of the appropriate inspectors on Steiger's premises contrary to relevant regulations. That particular inquiry was completed. Further the sergeant has conceded, and there is no doubt, that he was involved in 1977 and perhaps early in 1978 into investigations into a large number of meat companies. Initially Steiger's was one of ten prime suspects. The investigation related to the use of local meatworks for the preparation of export meat contrary to certain regulations. The sergeant has given evidence, and it is uncontradicted, that initially he was approached by Inspector Bourke, one of his superiors, during the time he was in fact involved in this second mentioned investigation and offered free meat. He declined to do so as he thought it was inappropriate for him to do so whilst he was conducting the meat investigation. Subsequently, one or so ./10. months after completing that HivestEpeELEH he was again approached by Bourke. As, in his own mind, he had reached the view that the investigation was over, one company and one director had already been charged in respect of this second investigation, he had got certain legal advice that there was insufficient evidence to lay written charges, and it was unlikely the matter would go further at this stage, he thus was free to accept the gifts of meat. The only other evidence during the period of the charges of any actual Australian Federal Police activity or investigation - Re the Company is a period of three days in September 1979. A surveillance was ordered by Inspector Dales and he gave instructions directly to Constable Elliott to carry it out. No great detail has been put before me. Apparently it was a short surveillance that revealed nothing. There is no suggestion on the evidence that the sergeant had any person knowledge whatsoever of that surveillance. For approximately 80 per cent of the relevant period, the sergeant was an acting inspector in the major crime squad within which these meat investigations came. He also gave evidence that as either a sergeant or acting inspector of that particular squad, he would have expected, in the normal channels of police communication to have been kept aware of any meat inquiries in particular, relating to the specific Company in question here. Sergeant Brown states on oath (and there is no evidence to contradict him) that from the time that he closed his role in the investigation on the second occasion where os edibles Steiger's were mentioned as a prime suspect until the time he left Melbourne and took up another post thus leaving the major crime squad in the southern areas of Victoria, he had no personal knowledge of any further meat inquiry in which Steiger's was involved. That evidence is undisputed. At the Royal Commission the sergeant wasvigorously cross-examined about his state of mind. It was suggested he should have made inquiries, and have been aware, of an interest or concern. The sergeant, at the Royal Commission, indicated some indiscretion and failure to make inquiry. Nothing at the Royal Commission added to this case any actual evidence of interest or concern by the Australian Federal Police. The short surveillance in September 1979, was not directed and did not occur through the normal channels of communication. For some reason which is unclear Inspector Dales arranged it directly with Constable Elliott. The sergeant had no knowledge of it. The sergeant indicated he received meat on about a two weekly basis. There were periods when he was on leave or Inspector Bourke was on leave. He only visited these meatworks with Inspector Bourke. The extent of that surveillance is minor. It does not constitute concern or interest during the period because of the Marrow nature of it. Although the claim of the sergeant that he had no actual knowledge of any surveillance of the Company is challenged oxexet E2's both in various records of interview and at the Royal Commission. I am not satisfied he had actual knowledge of it. The question of knowledge, can also be found in the concept of constructive knowledge. If a person was in a situation where he was in the position and would reasonably have been expected to make inquiries that would have resulted in him finding out of a concern or interest, then it could be said that he has constructive knowledge. He is wilfully blind to that situation, is recklessly indifferent to it and chooses not to make those inquiries. Never- theless, on the evidence before me, subsequent to the second investigation that was completed in early 1978, except for the short period in September 1979, up until the time the sergeant left Melbourne and came to Canberra in mid 1980 - there is no evidence of any other precise concern or interest by the Australian Federal Police. If the sergeant had of made those inquiries, on the evidence before me, there is no evidence he would have discovered anything further beyond the short surveillance in September 1979 which, would not have led him very far because it was short and fruitless. On behalf of the Commissioner as Mr Vickery argues that there have been these previous two inquiries and there is no evidence of any formal closing of files, the case is a significant one and allegations are still incomplete (although there is no evidence upon which to prosecute anyone), I should draw the inference to the appropriate standared of proof that there was concern or interest by the Australian Federal Police. Two extreme views have been put by counsel in this aera] 13% matter. Mr Higgins argues the "concept of concern or interest" by the Australian Federal Police requires an actual investigation or complaint to be underway. On the other hand Mr Nickery says that I can infer that element from a complaint that is completely unresolved even though there is no evidence of actual activity by the Australian Federal Police. In my view neither of those extreme views are correct. I am satisfied that there could be a case where although there is no active investigation or complaint under operation, the matter could still be of general interest or concern to the Australian Federal Police on the basis that there was an ongoing interest and perhaps there was a general eye being kept in respect of the matter. On the other hand I do not accept Mr Vickery's argument. The mere fact that there had been investigations, completed prior to the sergeant accepting meat, is insufficient to establish this element. It would have been appropriate for someone from the Australian Federal Police in a position of authority to be called» and give evidence of the state of mind and the state of operation in relation to this particular company. No such evidence was called. It could have been called. The officer in charge of the Victorian diserten who would have had under his control all operations in the Victorian area may have been a relevant witness. on ohhh. i | I am not satisfied that the Commissioner has not proved on the relevant standard of proof that there was interest or concern during the relevant period that was reasonably contemporaneous with acceptance of gifts of meat by the sergeant. I am not satisfied that Sergeant Brown had direct awareness and on the evidence presented to me, I am not satisfied that even constructive knowledge could be made out. I should not be taken as saying that I do not believe the sergeant's activities in this regard should be regarded as exemplary. I think he should be criticised for it. I believe his actions to be indiscreet, leaving him in a situation where both he and the police force could easily be compromised but those comments, in my view, are no substitute for hard evidence in relation to elements that must be proved in establishing disciplinary proceedings. If the Commissioner lays a charge, he must call the evidence to establish that charge in accordance with the elements required. It is not good enough for the court simply to be satisfied that the sergeant has done something indiscreet, something wrong, perhaps even something that could be regarded in some circles as improper. The evidence must meet elements and I am not satisfied the elements are met. I find Sergeant Brown not guilty of these two breaches of discipline. ¢ao7'l5s = 1§ = Charges 18 and 19 Both of these charges, are brought under regulation 18(1)(a) in conjunction with regulation 7 of the Australian Federal Police Disciplinary Regulations. Regulation 7 gives rise to the offence which is actually charged in this case and states: "7, A member shall not knowingly make in the course of his duty a statement, whether written or oral, that is false or misleading". In both cases charges 18 and 19, the allegation alleges a false statement. The charges arise out of answers given by Sergeant Brown to Sergeant Kemp from the Internal Investigations Division investigating allegations against Sergeant Brown in a record of interview dated 9 October 1981 - exhibit F. Charge 18 relates to question 8 of that record of interview and the question is: "To your knowledge, has Inspector Bourke ever been involved in any form with any meat industry which operates in the Northcote area? ---- Not to my knowledge." It is conceded by the defence that that answer is false. Charge 19 arises from question and answer 9 of the same record of interview and that question is: "Have you ever obtained any meat from any meat works in the Northcote area? ----- No." It is conceded by the defence on the evidence in this case that the answer is false. -«/ 16. The argument put by Mr Higgins in this case relates only to one element and that is, was the answer given in the "course of duty" of Sergeant Brown. In my view the glements to be proved by the Commissioner in respect of the charge against regulation 7 are as follows. (1) The making of an oral or written statement. (2) The statement must be made in the course of the duty of the member. (3) The statement must be shown to be false. (4) The statement must be shown to be false to the knowledge of the member either actually or constructively. Only element 2 is disputed by the defence. The defence submits and the Commissioner's representative concedes that general order 6 as it stands had not come into operation at the time these answers were made in the record of interview. Thus at that time there was no duty or power in internal investigation division officers to direct or require a member to answer questions in an internal investigation upon a direction being given. The defence submits that as there is no order or direction given in this case and neither was there any power to do so, Sergeant Brown was not obliged to answer truthfully. He was not obliged to answer at all. He should have been able to rely on his normal rights to silence and his rights against self-incrimination and in that situation it cannot be said that the statement was made in the course of his duty. The Commissioner's representative seeks to fall back on general order 5, sub-paragraph 7(a). It is conceded by Mr Vickery se nhlle that no direction was given to answer questions that purported to be pursuant to that general order, sub-paragraph but he says that the circumstances inferred such a direction. I=am not persuaded by that argument. Furthermore, I am not convinced by the narrowness of the argument of Mr Higgins in respect of the concept of course of duty. It is not required that there be a legal duty or power to give a direction or requirement to make a statement to internal affairs officers before a member can be said to be in the course of his duty. He may be under no obligation to answer but if he does choose to answer, in my view, for him to answer falsely or in a misleading way involves him making a statement that is false in the course of his duty. In my view the element in this regulation of "course of duty" should not be subjected to technical restrictions such as Mr Higgins seeks to impose. Sergeant Brown was being officially questioned by officers of the internal investigations division. He knows that to be the situation. He is informed about the allegations. Even at that time he was not directed or compelled to answer any questions he did give answers to those officers and he did so knowing that he was giving a false answer and knowing the possible effect that it might have on future investigations into the allegations. Whilst the various provisions of the legislation prevent such answers being admissible in criminal proceedings, in sv ofl8. relation to disciplinary offences, it is within the contemplation of the intention of the legislature that the course of duty be given a wider meaning than that argued for by Mr Higgins. As the member was being officially requested to supply information or asked to assist in relation to allegations made against him, in the course of his duty, he was required to answer truthfully if he does choose to answer. The question of his status if he had of declined to answer is not relevant here and is not in need of determination. If he answered the questions his obligation under the regulation is to answer truthfully and not to mislead the investigation. I am satisfied that (a) Sergeant Brown did make oral and written statements (recorded in the form of a record of interview) (b) those two statements in relation to those charges 18 and 19 were false (c) he knew them to be false and (d) both statements were made in the course of his duty. For those reasons I find him guilty of these two breaches of discipline. Charges 20, 22 23 and 24 I turn now to group 3 of the charges and they comprise, @with the exclusion of charge 21 which has been withdrawn) charges 20, 22, 23 and 24 of 1982/83. These charges involve allegations of misleading statements in a record of interview conducted by Sergeant Lewington on 13 May 1982 - exhibit D. Once again all oe a [19s charges are brought under regulation 18(1)(a) and regulation 7 of the Australian Federal Police Disciplinary Regulations with the substantive offence being under regulation 7. = The elements required to be proved by the Commissioner are as follows. (1) The making of an oral or written statement. (2) In the course of his duty. (3) The statement is misleading. (4) It must be misleading to the knowledge of the member. In respect of knowledge he either has to have actual knowledge or constructive knowledge of the misleading nature of the statement he makes. On 13 May 1982, the date of the subject record of interview, general order 6 did operate. In fact Sergeant Lewington referred the sergeant specifically to general order 6 before the questioning commenced. The effect of the general order is to require members to answer questions put by the internal investigations division and Sergeant Brown was so directed in this case and advised of the dangers of making false and misleading answers prior to the record of interview. Consequently no argument was advised by the defence in respect of the question of "course of duty"in relation to this group of charges. The only issue remaining in this case is whether it can be said that the particular statements made by the sergeant in answers to the various questions in the record of interview were misleading. see 20s There is considerable evidence from Sergeant Brown himself of his intention and aim in answering the specific questions subject to the charges in this record of ticerview. In exhibit E, the record of interview of 24 August 1982, in questions 19 to 31 inclusive the sergeant gives evidence of his aim and intention in giving certain answers in the record of interview including the particular ones that are subject of these charges. In fact they also refer to the earlier charges 18 and 19. Further, he gave sworn evidence before this tribunal at pages 106 to 107 and 111 to 112 on 28 February 1983 in respect of his intention. Further he made statements to the Royal Commission, exhibit K and also he made some explanation of his answers and conduct in making these statements in his submissions put to the Commissioner in respect of these charges. Without referring to those matters in precise detail, there is no doubt, on the evidence before me, I am satisfied that Sergeant Brown aimed to lead the investigating officers from the object of their inquiry. He aimed to remove any suspicion from himself and to turn the direction of the inquiry in relation to the allegations away from him. However, I agree with the defence submission that for regulation 7 to be breached in respect of a misleading statement, more than a mere intention to mislead must be shown. It must be demonstrated that the statement is capable of misleading and does mislead. The test is an objective one applied in all the circumstances and the context in which the statement is made. soa Zh. It is necessary to consider each statement in relation to each charge, look at the context of that answer, the context of the question, the circumstances and direction ofsthe investigation, and assess the potential objective effect of such an answer upon the investigating officers and then make a judgment about whether I am satisfied it is misleading. A truthful answer, in my view, can still be misleading depending upon the context, the nature of the question and the circumstances. It is necessary to refer specifically to questions and answers 23 and 24 of the interview of 13 May 1962 in relation to Sergeant Brown's attitude in this respect. Charge 20 relates to question 7 of the record of interview - exhibit D, the record of interview between Sergeant Lewington and Sergeant Brown on 13 May 1982. Question 7: "I put it to you now, have you ever received meat free of charge or at a reduced rate from any establishment for any reason?---As stated then and I will reiterate that statement, I have received meat at a reduced charge but not for the purpose which the allegations are made." There might not be any absolute untruth in the actual text of that answer but nevertheless, in the circumstances and context { and the manner of the answer given, in my view that answer clearly implies to the officers that no free meat had ever been obtained by this officer. It has the objective effect of misleading them into the opinion that Sergeant Brown had never received free meat. That fact, taken in conjunction with his avowed intention, is sufficient to satisfy me that that answer, given by Sergeant Brown, was a misleading statement. Accordingly I find charge 20 proved and Sergeant Brown is guilty of that breach of discipline. Charge 22 relates to question and answer 31. The question is: "Since conducting that particular inquiry - have you had any further contact with either Steiger or Baume?---Yes, I saw them at the Royal Commission. I also saw them at the Melbourne Magistrate's Court during the Eagan Affair. Eagan is from Bambera meats." The answer to that question is factually incorrect and incomplete. There is a deliberate omission of two other contacts with the two gentlemen mentioned and the intention and effect of that answer is to mislead the officers in an attempt to minimise their knowledge of his contact with the two principals in Steiger's meats and is in direct conflict with other evidence later given by him particularly in relation to his statement made to the Royal Commission at page 4, the statement to:'the Royal Commission itself in various other parts that are mentioned in the evidence, and also the record of interview which is exhibit J, question 48 where he does cover these matters. I am satisfied, for those reasons, that this is a misleading statement within the terms of regulation 7. I find Sergeant Brown guilty of this breach of discipline. Charge 23 which involves question 90 of the record of interview; "I put to you again the original allegation in that on the departure of yourself and Inspector Bourke from southern division, Sergeant Harris took over the supplying of information to persons unknown in exchange for meat either free or at a reduced cost and further that in turn Sergeant Harris endeavoured to get Sergeant Van Kyke and/or Barrow to take over that role from hin. What do you say to that?---I have never purchased meat at a reduced rate or received free meat in exchange for information." exeneil 23% On reflection he perhaps could have been charged in respect of that part and there would not have been any doubt but he was not. "T have never divulged any information s relating to meat inquiries or any other inquiry to anyone outside the force. I know nothing of the allegations which Van Kyke and Barrow have made. The only thing that Harris took over from Bourke and myself was the purchasing of smallgoods from Dandy." In respect of that matter, on the evidence, it is quite clear that whilst Sergeant Brown did not have direct knowledge of Harris' potential future involvement, at the time of making this record of interview, it is quite clear from other evidence particularly the record of interview conducted on 24 August 1982, questions 102 to 105 and his statement to the Royal Commission at page 5, that his belief was contrary to that. In fact he had a suggestion and a strong belief that in fact Harris was taking over the free meat enterprise, if I can call it that. Although what he has stated might be truth as to his actual knowledge, his failure to state an inconsistent belief in relation to Harris' future role and potential role has the effect of misleading the officers from the scope and operation of their inquiry. It constitutes a misleading answer or statement and I find Sergeant Brown guilty of this breach of discipline. The final charge is charge 24 which involves question and answer 112. "Do you know how Ron Harris first came into contact with Steiger's to produce meat for his dog?---As I said before I was not aware of the fact he was going to Steiger's until Senior Sergeant Kemp mentioned it at my first interview." wh 24s The answer in that form whilst it might technically state what Sergeant Brown was actually aware, it is a deliberate failure by him to complete the answer, and to mention that he had a contrary belief and had grounds for a reasonable belief that the situation was contrary to that answer. It has the effect of misleading the officers concerned and with the avowed intention mentioned, amounts to a misleading statement. For that reason I find that particular breach of discipline proved. The answers that have been subject of this last group of charges were in fact answers that were considered to be suspect, (if I can use that neutral term) by Sergeant Brown himself in answer to a question by Sergeant Lewington. He specifically nominates these questions as questions where he was far from frank. Of course his opinion alone would not be sufficient to establish the charges. But it expresses his aim and one has to look at that in conjunction with the objective effect upon officers conducting the investigation receiving answers of this sort. A number of issues are worthy of comment in respect of this hearing. I have ruled that on the present law the evidence given by the sergeant at the Royal Commission is admissible. However, I am certain that in 1902 when that Royal Commissions Act was introduced, no one had envisaged an argument being raised about the admissibility of evidence in disciplinary proceedings in 1983. If the authorities view it appropriate, it is a matter for the authorities to perhaps amend the Royal Commissions Act. At the hearing it was never alleged or suggested and there vcore 29 is no evidence before me, that Sergeant Brown was anything more than indiscreet and placed himself and the Australian Federal Police Force into a situation of possible compromise: in the future. It has never been suggested that he in a corrupt way exchanged information for free gifts. Such allegations were put to him; he denied them and there is no evidence that leads me to a finding anything contrary to that denial. In relation to the question of interest or concern in regulations 15 and 21, the object of the regulation is to avoid the type of situation where even short of exchanging information or giving improper information to potential criminals, the force or the member is compromised. In my view it is necessary except in the most obvious cases - and I do not find this to be one - that some formal evidence be called by the Commissioner to establish concern or interest in the Australian Federal Police. The problem for the Commissioner in this case was his simple reliance on admissions of the sergeant and what the sergeant stated about the situation and obviously here that evidence was insufficient The formal orders of the Tribunal are as follows: (1) I find Sergeant Raymond John Brown guilty of the breaches of discipline alleged in Charges 18/8283, 19/8283, 20/8283, 22/8283, 23/8283 and 24/8283. (2) Charge 21/8283 is withdrawn. -../26. (3) (4) (5) I find Sergeant Raymond John Brown not guilty of the breaches of discipline alleged in Charges 16/8283 and 17/8283. e After hearing argument I order the Commissioner of the Australian Federal Police to pay the costs of Sergeant Brown in respect of Charges 16/8283 and 17/8283. I order the quantum of those costs to be 2/3 of the costs of the hearing before the Tribunal, If the parties cannot resolve the quantum of costs I give liberty to apply to the Tribunal. The breaches of discipline that I have found established are referred to the Commission for penalty. R.J. CAHILL, S.M. MEMBER 23 March, 1983