JUDGMENT No. LL ubaddat IN THE FEDERAL POLICE ) ) No. 11 of 1983 DISCIPLINARY TRIBUNAL ) BETWEEN: FREDERICK NEWTON MARR Appellant AND: THE COMMISSIONER OF POLICE Respondent ORDERS THE PRESIDENT 9 DECEMBER 1983 CANBERRA, A.C.T. THE TRIBUNAL ORDERS THAT 1. 2. The appeals be upheld. In lieu of the penalty of dismissal from the Australian Federal Police imposed by the Commissioner of Police in respect of Charge No. AFP:43/8283 the Appellant be reduced in rank from the grade of First Constable in the rank of Constable in whichever of the components of the Australian Federal Police referred to in ss.6 and 7 of the Australian Federal Police Act 1979 he is serving to the grade of Constable in the rank of Constable in that component, the reduction in rank to take effect from today. /2. In lieu of the penalty of dismissal from the Australian Federal Police. imposed by the Commissioner of Police in respect of Charge No. AFP:44/8283 there be imposed on the Appellant a fine equal to the salary payable to him for a period of five days at the rate payable this day. In lieu of the penalty of dismissal from the Australian Federal Police imposed by the Commissioner of Police in respect of Charge No. AFP:45/8283 there be imposed on the Appellant a fine equal to the salary payable to him for a period of five days at the rate payable this day. The Appellant's costs of and incident to the appeal be paid by the Commonwealth. There be liberty to apply in respect of the form of the second order above. IN THE FEDERAL POLICE ) DISCIPLINARY TRIBUNAL ) BETWEEN ; © AND: REASONS FOR DECISION 9 DECEMBER 1983 No.11 of 1983 FREDERICK NEWTON MARR Appellant THE COMMISSIONER OF POLICE Respondent KELLY J (President) Protective Service First Constable Frederick Newton Marr (the Appellant), a member of the Australian Federal Police, appealed against the penalty of dismissal imposed upon him by the Commissioner of Police pursuant to s.67(6) of the Complaints (Australian Federal Police) Act 1981 (the Act) in respect of each of three disciplinary offences with which he had been charged 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 Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely paragraph 6.(b), in that on 20 March 1982, at Mile End in the State of South Australia, he made an entry in an official record, namely, the 'Mile End Railway Squad Running Sheet - No.166/82" showing - 1. adjacent to the time of 1400 hours, "AFTERNOON SHIFT commenced duty, F/C MARR SHEPHARD and DEBNAM and McEWEN. Station property and vehicle checked all correct."; 2. adjacent to the time of 1450 hours, "F/C DEBNAM & McEWEN on mobile patrol to Hills area."; 3. adjacent to the time of 1910 hours, "F/C McEWEN, F/C MARR §& SHEPHARD to Bridgewater."; thereby knowingly making false entries in an official record. (Australian Federal Police Charges Nos. AFP: 43/8283, 44/8283 and 45/8283.) -2- A fourth charge of failing to report his knowledge of the commission of an offence by Constable McEwen to his superior officer was dealt with by a fine after the Appellant had pleaded guilty. In substance, the Appellant's grounds of appeal were that: - 1. Each penalty was unduly severe having regard to the offence admitted and the matters put in mitigation. 2. Generally each penalty was out of all proportion to the offences and was unduly severe. 3. The Commissioner failed to have appropriate regard to the Appellant's previous good character and service and his desire to continue serving. 4. The Commissioner failed to consider the offences as substantially a single transaction. 5. The lapse of time between offence and penalty meant that the penalty was unduly severe. On 20 March 1982 the Appellant was the most senior of four police officers of. equal rank rostered for railway duty. As the most senior, it fell to him to be shift supervisor and to complete the log, running sheets and other records kept by the squad during their period of duty on that day. 20 March 1982 was a Saturday. The supervisor of the squad and, it appears, of other squads performing railway duty, was Sergeant Boll. He was not on duty at the relevant time and in fact was absent from Adelaide to which he returned at about 5 p.m. that day. Nevertheless, there were available senior officers from whom the Appellant might reasonably have sought guidance concerning the problem which confronted him on that day. -3- The problem arose because Protective Service First Constable McEwen telephoned the Appellant from Canberra to ask him to cover up for him as he would not be available for duty on that day. Foolishly, the Appellant agreed. He said, "Well, I'm not going to sign your name anywhere," and then said, "All right. Well we will cover for you."' He mentioned the matter to the other officers on the shift, Constables Debnam and Shephard. He appeared worried and quiet, obviously appreciating the gravity of his situation yet finding himself in the invidious position of having promised a fellow officer of equal rank to do something which was unlawful. His duty in the circumstances was plain but his dilemma was understandable. It was compounded when the necessity to make appropriate entries in the running sheet arose since without them the deception obviously could not have had any hope of success. The Commissioner is, in my opinion, entitled to expect that police records will be accurately and truthfully maintained. Breach of the duty so to maintain police records must be viewed very. seriously. This is not the first case of its kind with which I have had to deal. While each such case must be dealt with on its merits, it is, I think, proper to say that falsification of police records, for whatever reason, may well warrant the penalty of dismissal from the Australian Federal Police. Such falsification is an indication of incipient corruption which should rightly be stamped out. I accept that this was the first time that Constable Marr had done such a thing. Aged 34,he has had over eight years service in the Australian Federal Police and its predecessor, the Commonwealth | Police. He does not appear to have had any annual assessments done upon him but his service history summary shows a respectable pass in the basic Constables' course in July 1976 and that upon -4- confirmation of his appointment in September 1976 he was described as carrying out duties in a reliable and efficient manner and as being pleasant, courteous and neat. On 20 October 1979 he was made First Constabie. He did two courses in 1981. His report from the Response Team Members' Course described him as having "from a slow start developed into a good team member through hard work and dedication" while the report from a Bomb Search Course described him as "a capable student who showed capacity to develop those qualities necessary for leadership". On 9 July 1982 he transferred to the General Policing Component. Detective Sergeant Kerrison described the Appellant as as good a worker as anybody else and said that in fact on several occasions he thought he was superior to some members of the squad of which he had command. He found him to be a very loyal and | conscientious worker. Sergeant Tinsley described him as a diligent worker, one of whom he had never had any bad reports from any other people with whom he had worked. I assume that the Commissioner had available to him a transcript of the evidence given by Sergeants Kerrison and Tinsley and, no doubt, a copy of the Appellant's service history. I assume, too, that he had a transcript of the submissions made on the Appellant's behalf before Mr. Norris by Mr. Herriman. Inspector Brennan who investigated the charges against the Appellant gave evidence on his behalf. He has known the Appellant throughout his police service. He said that the Appellant held a good reputation of being a hard working policeman. He had never had, until the instances under consideration, any reason to doubt his integrity and during the course of the investigation he found the Appellant very frank and forthright in his answers. © From material placed before Mr. Norris by Mr. Herriman who then appeared for the Appellant, although he did not appear for him on this appeal, it appears that the Appellant separated from his wife well over a year ago and is having problems in connection with that. However, he did not advance that separation or his problems as having any bearing upon the offences. He had known Constable McEwen for some four years but had had very little to do with him socially. They were working acquaintances rather than close friends. He assumed when Constable McEwen rang from Canberra on 20 March 1982 that there had been some kind of emergency with which Constable McEwen was trying to cope. He did not check to see what was the exact case and on the spur of the moment decided to help. He did not reflect upon the implications of what he had agreed to do at that moment beyond | his refusal to sign Constable McEwen's name but immediately after the STD call had been completed he began to realise the difficulties he had made for himself. He was, however, unable to make contact again with Constable McEwen. Although he spoke to the other Constables on duty and told them of the phone call he, and it appears they, felt themselves caught by the situation. He felt sympathetic towards Constable McEwen. It was a quiet day with little to do in the way of work and he thought no great harm would be done so far as the tasks allotted to the squad were concerned. Mr. Fairbank of counsel for the Commissioner conceded the accuracy of the matters of fact put by Mr. Herriman and, indeed, of those put by Mr. Burton who appeared for the Appellant before me. It seems that since he committed the offences he has been given and discharged responsibility commensurate with his seniority. -6- He has been in charge of various shifts from time to time and believes he has discharged his duties satisfactorily. There is nothing to indicate to the contrary. Against the Commissioner's right to be satisfied that all entries in police records are made accurately and truthfully may be set the ethos of mateship particularly between members of a disciplined force. When that mateship is converted into disinterested action as appears to have been the case in these matters, one may the more readily understand it. As was pointed out by Fox J in Scanes v. Wilson, (1974) 22 F.L.R. 262, in words which, having regard to the different circumstances which he was considering, may well be considered applicable here, "Tt would be dangerous to impose on the Police Force a standard in relation to such matters which is very much higher than that observed by the community in general. The conclusion that because of the untrue statements no trust could be reposed in the appellants and no reliance could be placed on them properly to perform their duties, seems to me, with respect, to be unsound, and not based on ordinary human experience." Allowing for the difference in the circumstances, I am satisfied on all the evidence that this is a case where dismissal from the Force of the Appellant would reflect a standard too much above that of the general community. Nevertheless, the Appellant's conduct warrants such retrébution as will indicate to him and to others that, in general, severe punishment will be meted out to those found guilty of a similar offence. I think the proper course is to order that the appeals be allowed and that in respect of Charge No. AFP:43/8283 the Appellant be reduced in rank to the grade of Constable within the rank of Constable and that in respect of each of Charges Nos. AFP:44/8283 and 45/8283 he be fined five days pay. The reduction in rank is to take effect from this day.