ee OS Ts parade 1? | IN THE FEDERAL POLICE ) ) No. 10 of 1983 | DISCIPLINARY TRIBUNAL ) | BETWEEN: EDWARD JOHN McEWEN Appellant AND: THE COMMISSIONER OF POLICE Respondent | | | i! | ORDERS | THE PRESIDENT | 9 DECEMBER 1983 CANBERRA, A.C.T. THE TRIBUNAL ORDERS THAT: 1. The appeals be dismissed. 2. The penalty of dismissal from the Australian Federal Police of Protective Service First Constable Edward John McEwen imposed in respect of Charges Nos. AFP:36/8283, 37/8283 and 41/8283 is to take effect forthwith. 3. The fines of three days pay, two days pay, two days pay and two days pay imposed in respect of Charges Nos. AFP:35/8283, 38/8283, 39/8283 and 40/8283 respectively are confirmed. IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: AND: REASONS FOR DECISION: 9 DECEMBER 1983 er No. 10 of 1983 EDWARD JOHN McEWEN Appellant THE COMMISSIONER OF POLICE Respondent KELLY J (President) Protective Service First Constable Edward John McEwen (the Appellant), a member of the Australian Federal Police, appealed against a number of penalties imposed upon him by the Commissioner of Police pursuant to s.67(6) of the Complaints (Australian Federal | Police) Act 1981 (the Act). He had been charged with seven disciplinary offences before a member of the Tribunal, Mr. J.R.B. Norris, Q.C. He pleaded guilty to each charge. The Tribunal recorded a finding that he was guilty of each and, as required by the Act, remitted the proceedings to the Commissioner of Police for the imposition of penalties. | The charges, all in respect of breaches of the Australian @ Federal Police (Discipline) Regulations (the Regulations), were | particularised as follows:- That the Appellant was guilty of a disciplinary offence specified in paragraph 18(1)(a) of the Regulations by contravening - 1. a provision of Division 1 of the Regulations, namely paragraph 4.(1)(a), in that on 20 March 1982 at Mile End in the State of South Australia, having been required to perform duty at Mile End Station for the period commencing at 1400 hours, and thereafter until 2200 hours, on that date he, not having been granted leave of absence for that period, failed to report for duty (Australian Federal Police Charge No. AFP:35/8283); 2. a provision of Division 1 of the Regulations, namely | paragraph 6.(b), in that on 22 March 1982, at Mile End | C) in the State of South Australia, he made an entry in an official book, namely, the "Mile End Railway Squad Attendance Book" showing his time of arrival for duty | at Mile End Station on 20 March 1982 as being 1400 hours and his time of completing duty on that date as being 2200 hours, thereby knowingly making a false entry in an official book (Charge No. AFP:36/8283) ; | \ | i } | | 3. a provision of Division 1 of the Regulations, namely paragraph 6.(b), in that between 20 March 1982 and 13 April 1982, at Mile End in the State of South Australia, he made an entry in an official record, namely, an "A.F.P. 24-Salary Advice Sheet" showing his shift times for Saturday 20 March 1982 as having been 1400 hours to 2200 hours, his entitlement to a 50% penalty in respect of that shift and his entitlement to a motor driving allowance in respect of that shift, thereby knowingly making a false entry in an official record (Charge No. AFP: 37/8283) ; | 4. -2- a provision of Division 1 of the Regulations, namely paragraph 12.(1)(a), in that on 20 November 1981, at Adelaide in the State of South Australia, he, by telephone, notified Protective Service Sergeant David Gregor - Number 435, a member of the Australian Federal Police on duty at the Salisbury Defence Research Centre Station, that he would not be reporting for rostered duty for the period 21 November 1981 to 22 November 1981 inclusive on account of sickness, thereby exaggerating an ailment, namely, Hay Fever, for the purpose of evading duty (Charge No. AFP:38/8283); a provision of Division 1 of the Regulations, namely paragraph 12.(1)(a), in that on 28 February 1982, at Canberra in the Australian Capital Territory, he, by telephone, notified Protective Service Senior Constable Eric William Temme - Number 1527, a member of the Australian Federal Police on duty at the Mile End Station, that he would not be reporting for rostered duty on 1 March 1982 on account of sickness, thereby feigning an ailment, namely, an Upset Stomach, for the purpose of evading duty (Charge No. AFP:39/8283); a provision of Division 1 of the Regulations, namely paragraph 12.(1)(a), in that on 19 April 1982, at Canberra in the Australian Capital Territory, he, by telephone, notified Protective Service First Constable Andrew Francis Clements - Number 1715, a member of the Australian Federal Police on duty at the Mile End Station, that he would not be reporting for duty on 19 April 1982 on account of sickness, thereby exaggerating an ailment, namely, Upset Stomach, for the purpose of evading duty (Charge No. AFP:40/8283) ; a provision of Division 1 of the Regulations, namely paragraph 6.(b), in that on 4 March 1982, at Mile End in the State of South Australia, he made an entry in an official document, namely, and "A.F.P. 188 - Application for Leave" showing, as the nature of illness for which he was applying for leave, an Upset Stomach, thereby knowingly making a false entry in an official document (Charge No. AFP:41/8283). The Commissioner imposed penalties in respect of each of the charges as follows:- 1. Charge No. AFP:35/8283 - a fine of three days pay ($181.59); Charge No. AFP:36/8283 - dismissal; Charge No. AFP:37/8283 - dismissal; Charge No. AFP:38/8283 - a fine of two days pay ($121.06) ; Charge No. AFP:39/8283 - a fine of two days pay ($121.06); and (e) -3- 6. Charge No. AFP:40/8283 - a fine of two days pay ($121.06); 7. Charge No. AFP:41/8283 - dismissal. The penalties imposed are provided for by paragraphs (b) of Regulation 22(1) of the Regulations. In substance the grounds of appeal were:- The Commissioner of Police (the Commissioner) failed to have any or proper regard for the fact that the two groups of offences identified respectively as Charges Nos. AFP: 39/8283 and 41/8283 and Charges Nos. AFP:35/8283, 36/8283 and 37/8283 arose out of substantially the same transactions and as a result of that failure imposed penalties that were unduly severe and had the effect of punishing the Appellant more than once for essentially a single wrong-doing. That each and every penalty imposed was unduly severe having regard to the matters alleged and the matters put in mitigation, the Commissioner failing to have any or proper regard for the matters put in mitigation. . That all the penalties imposed were unduly severe. That if the penalties of dismissal are upheld the additional fines imposed were unduly severe having regard to all the circumstances of the offences. The evidence concerning the offences is relatively meagre but it was not suggested by Mr. Fairbank of counsel for the Commissioner that I should reject the Appellant's written explanation or any of the evidence called or tendered on his behalf. Mr. Fairbank made no challenge to any of the factual material which Mr. Herriman put forward in his submissions to Mr. Norris and to me. Accordingly, I accept that material as accurate except as to one matter where clearly Mr. Herriman was mistaken. -4- On the basis of all the material just referred to I make the following findings of fact, dealing with the charges, not in the order in which they were preferred, but in chronological order and in their appropriate groups. The Appellant joined the Commonwealth Police, one of the predecessors of the Australian Federal Police, in 1977. In that year he married and has a five year old child. In October/November 1981 he and his wife separated, not amicably. Since that time there had been protracted disputes concerning the matrimonial possessions and money. His wife has continued to live in the matrimonial home but he pays the mortgage payments on the house, all medical and hospital benefits and some loan repayments. In total he pays $218.00 per fortnight plus medical benefits to or on behalf of his wife, leaving himself a net income after payment of tax of $300.00 per fortnight. By this time, undoubtedly, a decree nisi for the dissolution of his marriage has been made. About that time he was suffering from Hay Fever and from stomach upsets, the latter condition being possibly attributable to his matrimonial difficulties. Mr. Herriman went on to state that in early 1982 the Appellant was posted to Canberra on official work and in the course of that posting met his present fiancee. This does not accord with Mr. Herriman's later statement that in November 1581 the Appellant went to Canberra to see his girl-friend. Nor does it accord with a statement in his service record which shows that on 13 January 1982 he made application for transfer to the Australian Capital Territory on compassionate grounds, he being then separated from his wife and son. The compassionate grounds were, as appears clearly from a further entry in that record dated 30 March 1982, that he wished to be near his fiancee. After meeting her he saw her on many occasions during visits to Canberra, made sometimes while on duty, sometimes privately. -5- On 20 November 1981 he suffered a mild attack of hay fever, not severe enough to prevent him from working. Nevertheless, as Charge No. AFP:38/8283 relates, he telephoned Sergeant Gregor to tell him that the hay fever from which he was suffering prevented him from reporting for rostered duty on 21/22 November 1981. He then went to Canberra to see his girl-friend. Some significance may attach to the fact that 20, 21 and 22 November 1981 were respectively a Friday,Saturday and Sunday but the material before me does not enable me to say exactly what that significance should be. The Appellant denies that he feigned illness on that date so that he might go to Canberra but it would pass reason to accept that he did not use the excuse of a minor indisposition to go to Canberra. No charge suggests that the Appellant received sick pay in respect of his absence from work on 21/22 November 1981 and I put that consideration out of mind. I consider next the group of two charges numbered AFP:39/8283 and 41/8283. On 28 February 1982 the Appellant was in Canberra. He was about to return but missed his bus. He telephoned Senior Constable Temme and said that he had an upset stomach and would be unable to report for duty as rostered on 1 March 1982. The Appellant said of this offence, "In a sense the reason I put on my A.F.P. 188, an upset stomach was partly true due to the fact that I got worried about missing the bus and that gave me an upset stomach." However, it is not suggested that that indisposition was enough to cause his absence from work. Indeed, on his statement, it arose after the incident which gave rise to the false telephone call. Reference to his condition must therefore be taken as simply an excuse to cover up the fact that he had missed the bus and would not be able to take up duty at the appointed time. -6- I next consider the group of offences numbered AFP:35/8283, 36/8283 and 37/8283. On 20 March 1982 the Appellant was in Canberra. In his submissions made on 21 March 1983 to Mr. Norris, Mr. Herriman said of the Appellant: "He was unwell, He was very depressed and he decided that he was not going to come back that day. He wanted to stay another day." I have no reason to doubt those statements but again it is not suggested that his condition was such as to prevent him from attending to his duties. He rang his colleague, Protective Service First Constable Frederick Newton Marr, rostered for the same shift for which he was rostered, and asked Constable Marr to "cover for him". Foolishly Constable Marr agreed to do so and as a consequence was charged with failing to report his knowledge of the commission by Constable McEwen of the offence of being absent without leave and with making false entries in official records indicating Constable McEwen's supposed presence on duty during the shift which he should have worked on 20 March 1982. Subsequently, on 22 March 1982, the Appellant made false entries in the appropriate attendance book showing his time of arrival for duty on 20 March 1982 as 1400 hours and his time of ceasing duty as 2200 hours. On an unspecified date between 20 March 1982 and 13 April 1982 he made false entries referred to in Charge No. AFP:37/8283. He explained the false entries in the attendance book as coming about as a result of an instruction by Sergeant Boll, his superior. Had he refused to sign the book, he said, he would have brought attention to the other officers concerned and to himself. In other words, the deception which had been carried out would have been immediately discovered. He gave as his reason for making the false entry in the salary advice sheet that it was too late to do anything else. He said, "By this time I had realised I had done wrong in the first place and by admitting to it I would have got the other officers in trouble." By this I take him to have meant that failure to sign the salary advice sheet as he did would have been tantamount to an admission of the falsity of the earlier entries and would have involved other officers, including Constable Marr, who knew of the deception in difficulty with their superiors. I turn to the last charge, No. AFP:40/8283. On 19 April 1982 the Appellant was again in Canberra. He telephoned first Constable Clements to say that he would not be reporting for duty on 19 April 1982 and gave as his reason an upset stomach. His plea admits that he exaggerated that condition for the purpose of evading duty. His explanation was as follows:- ".,.. again I feel I didn't feign sickness for the purpose of staying in Canberra for an extra day. At this time I was feeling very low and depressed and getting stomach upsets quite often, and having someone to care for you at that stage is very comforting. Also due to the fact that my application for any type of transfer to the A.C.T. had again been denied didn't help matters." . I was asked to take into account a number of matters in mitigation. I list some of them:- 1. The state of the Appellant's health, indicated by his loss of weight, inability to sleep and depression and his seeking medical advice. 2. His service in a number of postings, some obviously involving a degree of responsibility. 3. His otherwise blameless police record. 4. His concern and continuing distress at the trouble he had caused other members in relation to charges Nos. AFP:35/8283, 36/8283 and 37/8283. ©) 5. His anxiety to continue to serve in the Australian Federal Police. 6. The evidence of his good character tendered on his behalf through various witnesses and by means of written references. 7. The Appellant's frankness when questioned about the offences by investigating officers. I accept the honesty of the character witnesses and of those who gave references. Mr. Herriman submitted that I should treat the offences charged in Charges Nos. AFP:35/8283, 38/8283, 39/8283 and 40/8283 as unpremeditated. He submitted also that I should treat the offences as constituting in substance four transactions only and, as I understood him, that I should take the view that the offences charged in Charges Nos. AFP:36/8283 and 37/8283 and the offence charged in Charge No. AFP:41/8283 were the inevitable and inextricable consequences of the offences charged in Charges Nos. AFP:35/8283 and 39/8283 respectively. An act may be said to be premeditated when it is planned or contrived previously. On the other hand an act done from a sudden inclination to act without premeditation is said to be done impulsively. I do not accept that any of the seven acts was done with that lack of premeditation which might in some cases constitute a mitigating circumstance. Each of the temptations to do the acts in question may have been an impulse but the actual acts each required a degree of deliberate action which gave the Appellant ample time to consider the nature of what he was doing. Four of the actions required telephone calls, three the making of false written entries. He may have committed the offences heedless of consequences but that does not render his actions unpremeditated. Such lack of premeditation as there may have -9- been is not, in my opinion, sufficient to constitute any degree of mitigation. During the course of submissions reference was made to the fact that absence from duty because of alleged illness would normally have the effect that sick pay would be paid in respect of the absence. On reflection, since no charge in respect of such sick pay has been brought against the Appellant, I dismiss from consideration any gain he may have fraudulently obtained. Mr. Herriman also said that the Appellant did not appreciate the full seriousness of the effect of what he did. It is said that he could not have expected that Constable Marr would have made written reports concerning his presence on duty on 20 March 1982. That may well be the case. But his failure to appreciate the possible consequences of his action displays a lamentable lack of ordinary foresight. Something was sought to be made of the fact that Sergeant Boll instructed the Appellant to sign the attendance book. It would be very surprising if a superior officer, inspecting. an attendance book, noted that there was no record relating to the attendance on duty on a particular day of an officer whom he believed for good cause (entries made by other officers) to have been present on duty on that day and did not instruct the officer concerned to evidence his attendance on that day in the normal way. The material put before me indicates that the Appellant returned to South Australia from Canberra on 21 March 1982 and resumed duty. Whether he resumed duty on 21 March 1982 or on 22 March 1982, the day he made the false entry in the attendance book, is not clear and I cannot therefore draw in his favour an inference that, although present on duty on 21 March 1982, he deliberately refrained from signing the attendance book lest he -10- compound the offence he had committed on 20 March 1982. It was also put that I should take into account the delay between the investigation which took place apparently on 23 April 1982 and the date of the first charge, 30 November 1982. I was referred to what I had said on this subject in the matters of Henry & Others v. The Commissioner of Police. I adhere to what I said in those matters concerning delay but do not see that in this case delay in preferring charges can affect my ultimate decision. Each case is to be judged on its own facts and the facts of this case are very different from those I was considering in those matters. I am unable to accept that the Commissioner had, by treating the offences charged in Charges Nos. AFP: 35/8283, 36/8283 and 37/8283 and in Charges Nos. AFP:39/8283 and 41/8283 individually, punished the Appellant for five offences when essentially there were only two sets of circumstances, each constituting a single wrong-doing. Each of the offences was entire in itself. None of its circumstances was common to any other. A plea of autrefois convict must have failed. That in the one case two offences stemmed from an initial offence and that in the other one did does not, in my opinion, make all the offences any the less individual offences. For convenience sake they may now be considered in groups but that does not affect their essential character. The Commissioner is entitled to have honest men on his Force. Nevertheless, not every act of dishonesty committed by a police officer warrants his dismissal. Scanes v. Wilson, (1942) 22 F.L.R. 262. Where, however, a police officer demonstrates by a number of acts of dishonesty over a period of months and by his failure to appreciate his duty to the Force of which he is a member and to his fellow officers that his fitness to continue -11- to serve must be very seriously in doubt, it would follow that normally the appropriate penalty would be dismissal. The offences with which the Appellant was charged and of which he was found guilty on his own admission cannot be treated each in isolation. The whole must be looked at. Mr. Herriman also submitted that just as the most severe sentence which may be imposed for a crime is to be reserved generally for cases of the worst kind so the penalty of dismissal is to be reserved for the most grievous disciplinary offences. I do not think the submission sound. The Commissioner is concerned, and I too have to be concerned, with the overall good of the Force, balancing that concern against the rights of the individual member. Each case has to be considered on its own merits, all relevant factors being taken into account. The discretion reposed in the Commissioner or in this Tribunal is not lightly to be fettered. The Commissioner may, for example, be dealing with a member charged with having committed several times a relatively minor offence which is prevalent and which repeated lesser penalties have failed to stop. I can see no reason why dismissal should not be appropriate in such a case. Repeated disciplinary offences of a minor character, none of which may reasonably be classified as of the gravest kind, may well demonstrate the unfitness of a member to be a serving officer of the Australian Federal Police. I have given careful consideration to all that Mr. Herriman put to me frankly and ably. He has said everything that could be said for the Appellant. In particular, I have considered with great care the Appellant's record which was finally forwarded to me with, as I understand it, the approval of counsel for the Commissioner. Because I have received no further submissions from -12- Mr. Herriman since receipt of the Appellant's record, I assume, having regard to the time that has passed, that he does not intend to furnish any more. I have given consideration to what might be described as the "sickie" mentality but I emphasise that the Australian Federal Police is a disciplined force which has specific legislative provisions prohibiting the taking of "sickies". I have, of course, taken into account the matters listed above. I have not had the benefit of the Commissioner's reasons for the penalties which he imposed. In the matters of Henry § Others v. The Commissioner of Police, the reasons which guided the then Commissioner in his decisions were available in writing. It was most helpful to have them and it would be helpful if in future cases the Commissioner saw fit to furnish the reasons for his decisions on penalties. I have considered whether the monetary penalties imposed in respect of Charges Nos. AFP:35/8283, 38/8283, 39/8283 and 40/8283 should stand. On the whole I have concluded that they are within proper limits and indicate the appropriate seriousness with which such offences should be viewed. In my opinion all appeals should be dismissed. eee I certify that this and the eleven preceding pages are & true copy of the Reasons for Rigger herein of his Honour Mr. Justice Kelly . XL Uomo Associate pated: 7% Decen ser, 1982. ee