7 G SUDGMENT No, Lebo LLCS IN THE FEDERAL POLICE ) ) No. 12 of 1983 DISCIPLINARY TRIBUNAL ) BETWEEN: FRANCIS JAMES ROWLANDS Appellant AND: THE COMMISSIONER OF POLICE a Respondent ORDERS THE PRESIDENT (KELLY J) 9 DECEMBER 1983 CANBERRA, A.C.T. THE TRIBUNAL ORDERS THAT 1. The appeal be upheld. 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:18/8182 the appellant be reduced in rank from the grade of Senior Constable in the rank of Constable in the Protective Services Component of the Australian Federal Police to the grade of Constable in the rank of Constable in that component, the reduction in rank to take effect from today. 3. The appellant's costs of and incident to the appeal be paid by the Commonwealth. © IN THE FEDERAL POLICE ) we DISCIPLINARY TRIBUNAL ) BETWEEN: AND: REASONS FOR DECISION: 9 DECEMBER 1983 No. 12 of 1983 FRANCIS JAMES ROWLANDS Appellant THE COMMISSIONER OF POLICE Respondent KELLY J (President) Regulation 18(1) of the Australian Federal Police (Discipline) Regulations (the Regulations) provides that:- "A member is guilty of a disciplinary offence and is subject to punishment in accordance with [the] Regulations if the member - (b) contravenes or fails to comply with a General Order or a General Instruction issued under section 14 of the Act; (d) is guilty of disgraceful or improper conduct, either in his official capacity or otherwise; (e) acts in a disorderly manner or in a manner unbecoming of the Australian Federal Police; (h) is found guilty by a court of an offence against a law of the Commonwealth, a State, or Territory or another country." Regulation 22 deals with penalties. It provides:- "C1) Where the Commissioner has determined that a member is guilty of a disciplinary offence or the Disciplinary Tribunal has remitted proceedings to the Commissioner under paragraph 67(3)(b) of the Complaints Act, the Commissioner may - (a) reprimand the member; (b) subject to sub-regulation (2), impose on the member a fine not exceeding an amount equal to the salary payable to the member for a period of 5 days at the rate at which salary is payable to that member on the day on which the determination is made; (c) subject to sub-regulation (2), reduce the annual rate of salary of the member to an amount per annum that is not lower than the lowest annual rate of salary payable to members holding the same rank as the member; (d) (e) in the case of a member other than a commissioned officer - (i) reduce the member in rank; or (ii) dismiss the member from the Australian - Federal Police. (1A) A member shall, for the purposes of sub- paragraph (1)(e)(i), be taken to be reduced in rank if he is reduced to - (a) a lower grade within the same rank; (b) a lower rank; or (c) any grade within a lower rank. (2) The Commissioner shall not impose a fine on a member or reduce the annual rate of salary of the member where the member is guilty of the disciplinary offence specified in paragraph 18(1) Ch). (3) Where - (a) the Commissioner has determined that a member is guilty of a disciplinary offence; and (b) the Commissioner is of the opinion that, as a penalty, the member should be reduced in rank or dismissed from the Australian Federal _ Police, the Commissioner shall, by notice in writing served on the member - (c) inform the member that the Commissioner proposed to impose the penalty on the member; and (d) require the member, within 7 days of the service of the notice, to deliver to the Commissioner any written statement that the member may wish to make showing cause why the penalty should not be imposed on the member, and, where the member delivers such a statement to the Commissioner, the Commissioner shall, before deciding whether to impose the penalty on the member, take into consideration the matters contained in that statement." By notifications dated 18 October 1982 the Acting Commissioner of the Australian Federal Police gave notice to the appellant of the institution of proceedings against him in relation to three disciplinary offences. In substance the offences charged were that the appellant was guilty of disciplinary offences -3- ~. specified respectively in paragraphs (b), (d) and (e) of Regulation 18(1) in that on 21 November 1981 at Watson in the State of South Australia he - (1) being the member in charge of an official police vehicle, carried in it unauthorised passengers, Pauline Paterson and Gillian Vine, thereby contravening paragraph 11 of General Order 21, a General Order issued under s.14 of the Australian Federal Police Act 1979. (Australian Federal Police Charge No. AFP:20/8182.) (2) while being the driver of an official police vehicle assaulted one Pauline Paterson, a passenger then in that vehicle, by touching her on her right knee, right thigh, right breast and right arm. (Charge No. AFP:18/8182.) (3) acted in a manner unbecoming a member of the Australian Federal Police when he drove an official police vehicle while under the influence of intoxicating liquor. (Charge No. AFP:19/8182.) By a letter, undated but probably written on 15 November 1982, the appellant advised the Commissioner that he wished the charges to be dealt with by this Tribunal. The letter was lodged in the Principal Registry of the Tribunal on 23 November 1982. By determinations dated 19 November 1982 lodged with the Principal Registry on 22 November 1982 the delegate of the Commissioner purported to determine in writing that it would be desirable for the proceedings to be heard and determined by the Tribunal. In truth he had no choice in respect of Charge No. AFP:18/8182 which was based on a complaint by a non-member for s.67(1) of the Complaints (Australian Federal Police) Act 1981 (the Act) provides: - "Where proceedings are instituted by the Commissioner against a member under the prescribed regulations in respect of a breach of discipline - (a) (b) as a result of an investigation of a complaint that was referred to the Investigation Division under section 6, not being a complaint made by a person known to the Commissioner to be a member, the proceedings shall be heard and determined by the Disciplinary Tribunal." No difficulty has arisen because of the apparent misapprehension. Before Mr. R.J. Cahill, S.M., a member of the Tribunal, the appellant pleaded guilty to Charge No. AFP:20/8182 but not guilty to the other two charges. After a hearing on Charges Nos. AFP:18/8182 and 19/8182 Mr. Cahill found the appellant guilty of all three charges and, as he was required to do by the Act, remitted the matters to the Commissioner for the imposition of the appropriate penalties. The Commissioner, exercising his powers under s.67(6) of the Act imposed those penalties he thought fit, namely, a reprimand in respect of Charge No. AFP:20/8182, a fine of three days pay in respect of Charge No. AFP:19/8182 and dismissal in respect of Charge No. AFP:18/8182. The appellant appeals only in respect of the penalty of dismissal. In substance the grounds of appeal are:- 1. That the penalty was unduly severe and out of all proportion to the circumstances of the offence. 2. That the Commissioner failed to have any proper regard for the appellant's previous good character, service record, period of service in the Australian Federal Police and his desire to continue in that service. 3. That the penalty had been imposed without the benefit of any submissions or evidence by the appellant in mitigation. 4. That the penalty was unduly severe having regard to the lapse of time between the commission of the offence and the imposition of the penalty and to the appellant's conduct since the commission of the offence. The relevant facts are set out in the reasons for decision handed down by Mr. Cahill. The appellant and his colleague, Constable Loehr, had volunteered for and were performing a six to eight weeks tour of security duty at Maralinga in outback South Australia. The nearest settlement was Watson, some 40 kilometres away. On the day the offences were cammitted the two had travelled from Maralinga to Watson to meet the supply train. There they came into contact with a_number of people including Mrs. Paterson and Miss Vine. They had previously met Mr. Sullivan with. whom the ladies were staying and, more recently, Mr. Paterson. They collected some supplies, including some beer, and returned to Maralinga. The same evening they left Maralinga for Watson at about 8 p.m. Between 2.30 p.m. and 8 p.m. both had consumed some beer. They arrived at Watson between 8.30 p.m. and 9 p.m., met the two ladies again and invited them to accompany them in the police vehicle in an attempt to find Messrs. Sullivan and Paterson who were engaged in rabbit shooting.some distance away. The two ladies accepted the invitation and got into the vehicle. All sat on the front bench seat. The appellant was driving. Mrs. Paterson with her infant daughter on her knee sat next to him, her legs astride the gear lever. Miss Vine was on her left and Constable Loehr on the extreme left of the seat. 'Eventually the vehicle reached a spot where its occupants sighted the lights of the vehicle being used by Messrs. Sullivan and -6- Paterson but no contact.could be made with the shooting party and the appellant drove the police vehicle back to Watson. On the trip in search of the shooting party and the return trip the appellant, as is not now in dispute, touched Mrs. Paterson on a number of occasions on the right knee, right thigh, right breast and right arm. Mrs. Paterson conceded that some of the touches may well have been accidental due to the crowded conditions in the front of the police vehicle. However, she insisted and the appellant now concedes that many of them were not. The finding that the appellant assaulted Mrs. Paterson by touching her on her right knee, right thigh, right breast and right arm is now beyond question. Such a finding necessarily involves a finding that the appellant was guilty of an indecent assault, an offence that might well have been made the subject of criminal proceedings under the law of South Australia. On 21 November 1981, s.56 of the Criminal Law Consolidation Act 1935 (S.A.) read:- "Any person who indecently assaults any person shall be guilty of a misdemeanour, and for a first offence liable to be imprisoned for a term not exceeding five years and for any subsequent offence to be imprisoned for any term not exceeding seven years." The detailed facts as found by Mr. Cahill indicate that the assault, while serious enough, ranks fairly low in the scale of such offences. Had the incidents been dealt with under the ordinary criminal law, it seems to me that there would have been a strong possibility that, had the appellant been found guilty, he would, in all the circumstances and having regard to his previous good character, been released on a bond to be of good behaviour. -7- Although I am not directly concerned with the charge in relation to driving the police vehicle while under the influence of alcohol, it is a matter which I have to take into account in deciding what is the proper penalty which the appellant should suffer. So too I have to take into account his unauthorised carriage of passengers in the police vehicle although relatively little weight need be given this factor. 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. It follows that the course adopted in charging the appellant with a disciplinary offence is sanctioned by the legislation but, nevertheless, it seems to me to be generally inappropriate that facts which prima facie involve an apparently serious breach of the criminal law should be dealt with not in accordance with that law but as a disciplinary offence or offences. I do not attempt to lay down any guidelines as to any question of public policy which may be applicable but I point out that had the appellant been tried for an offence or offences under the criminal law, the different standard of proof applicable may well have meant that he would have been acquitted, for consideration of the material placed before the Tribunal indicates that this is just such a case as occasionally leads to a jury verdict of "not guilty". (In saying this I am not to be taken as levelling any criticism against Mrs. Paterson whose complaint has been vindicated by Mr. Cahill in his findings. However, I do take into account the criticism he levelled at some of the evidence.) But, more importantly, the bringing of proceedings for a disciplinary offence in respect of the assault plainly meant that the appellant did not appreciate the gravity of the charges being brought against him. This was evidenced by his failure to seek representation at the hearing before Mr. Cahill. It was further evidenced by his response to the notice which the Commissioner forwarded him pursuant to s.67(7) of the Act. (In passing I note that that notice included a paragraph stating that the Commissioner proposed to impose the penalty of dismissal on the appellant. Such a statement is not provided for by s.67(7). It indicates that the Commissioner has gone a long way towards making up his mind as to the appropriate penalty, not that it might be appropriate to impose a particular penalty upon the member. I rather think that the form of the notice has been influenced by the provisions of Regulation 22(3) of the Regulations. In my opinion the form of the notice makes it more difficult than is necessary for the Commissioner to consider appropriately what penalty he ought to impose on a member found guilty of a disciplinary offence by him or by the Tribunal. I leave for a more appropriate occasion consideration of the validity of paragraph (c) of Regulation 22(3) of the Regulations.) I note, too, that the record of the investigation into the complaint by Mrs. Paterson made by Detective Sergeant Burton, Exhibit C before Mr. Cahill, includes the following: - "T [Sergeant Burton] therefore require you to forthwith furnish a comprehensive report concerning the complaints, a copy of which I now give to you." - -9- Nothing in that direction indicates that it was given under s.7(5) of the Act and therefore would have afforded to any statements made as a result of the direction the umbrella of privilege provided by s.7(6) of the Act. That umbrella may not be used as a shelter, as s.7(7) of the Act provides, when the member concerned has not been expressly directed under s.7(5) to furnish information requested, produce a document or record required or answer a question asked by the investigating officer. The method of investigation of Mrs. Paterson's complaint, the delay of almost 11 months before a charge was preferred and the decision to prefer a charge that a disciplinary offence had been committed, all contributed, in my opinion, to the appellant's failure to appreciate the gravity of the situation facing him. In the result there is a degree of incongruity in Charge No. AFP:18/8182 as formulated. It seeks to confine within improper conduct as the driver of an official police vehicle the relatively serious charge of indecent assault. The charge as laid seems to lack a due sense of proportion. Mr. Fairbank of counsel for the Commissioner submitted that I should approach the Commissioner's decision as would an appellate court dealing with the decision of a judge at first instance. He referred particularly to House v. The King (1936) 55 C.L.R. 499 and submitted in effect that I could only interfere with the Commissioner's decision if I were satisfied that his decision was the equivalent of that of a judge who had wrongly exercised his discretion in sentencing. I do not accept that submission. Section 68(5) of the Act, dealing with appeals to the Tribunal from proceedings remitted to the Commissioner, empowers the Tribunal constituted by the President or a Deputy President to -10- set aside the penalty imposed on the member in respect of a breach of discipline and to substitute for that penalty such other penalty as the Tribunal deems fit, being a penalty that the Commissioner would have had the power to impose under the prescribed Regulations if he had heard the proceedings and had found the member guilty of the breach of discipline. There is no apparent restriction on the discretion reposed in the Tribunal so constituted. Section 67(6) of the Act prescribes that where the Tribunal remits proceedings to the Commissioner for the imposition of a penalty on a member in respect of a breach of discipline, the Commissioner may, subject to a provision with which I am not presently concerned, impose on the member, in respect of the breach of discipline, such penalty as he thinks fit, being a penalty that the Commissioner would have had the power to impose on the member, under the prescribed Regulations, if the Commissioner had heard and determined proceedings and found the member guilty of the breach of discipline. The similarity between the words giving the Commissioner power to impose penalties and those giving the Tribunal power to deal with the question of penalty on appeal is striking and I conclude that there is vested in each of the Commissioner and the Tribunal, as appropriate, a complete discretion. Further, the Act makes no provision for the procedure which is to be followed by the Tribunal other than to prescribe by s.76(1) that "in a proceeding before the Disciplinary Tribunal, the procedure of the Tribunal is, subject to this Part, and to the Regulations, within the discretion of the Tribunal". Nothing in the Act or the Regulations indicates that any restriction is to be -ll- placed upon the discretion of the Tribunal in respect of appeals on penalty. I conclude, therefore, that it is proper for the Tribunal to hear fresh evidence and to reach that conclusion on the appropriate penalty which in all the circumstances it thinks proper. I refer to Halsbury's Laws of England, 4th Edn. Paras. 281-286, where the procedure in relation to the hearing of ~ charges of disciplinary offences against police officers in England and of appeals from findings made in respect of any such offence is discussed. The procedure there followed is not in substance dissimilar from that which I think appropriate under the Act. Of course, the decision which the Commissioner reaches is to be given considerable weight. After all, the discipline of the Force of which he is the head is his particular concern and the Tribunal is bound to consider very carefully the views he expresses in any matter relating to discipline. When the appellant appeared before Mr. Cahill he was, as I have indicated, unrepresented. While Mr. Cahill did all that he properly could to assist him, he obviously remained at a disadvantage. Given notice by the Commissioner pursuant to s.67(7) of the Act that the Commissioner was considering dismissal as an appropriate penalty and invited to make a written statement to be taken into consideration on the question of penalty, the appellant replied as follows: - "T wish to advise the Commissioner that I will be appealing to the Registrar of the Tribunal in accordance with Section 68 of the Complaints (Australian Federal Police) Act 1981." In evidence before me he explained his response to the Commissioner's notice as follows:- -12- "TI asked Sergeant Hewitson when he gave that to me 'What do I do?' He said, 'If you are going to appeal, just put your reasons in for appeal. That is it, but you have to do it within 7 days.' I must have misunderstood that part of it ..." The response was hardly calculated to deter the Commissioner trom imposing the penalty he thought appropriate. In evidence before me the appellant gave his age as 43. He is married with two children, only one of whom is dependant on him. A summary of his service record shows that he was appointed a Special Constable in the Commonwealth Police Force in March 1973 and appointed Constable in July 1974. He was promoted to Constable First Class on 19 August 1976 and advanced to the grade of Senior Constable on 19 October 1979. He enjoys working in isolated and remote areas and. I formed the opinion, listening to him, that he was especially suited for that sort of work. He described his feelings for his position in the following way:- "IT like the job. It is more than a job to me, it is something special. I enjoy doing it and it is sort of part of me. For 10 years I have been doing it now and, as I say, I enjoy doing it." He gave evidence of the strain which the long delay in finalisation of the matter had caused nim. He expressed deep contrition for the offences and I accepted that he was sincere. He described the work of the "Maralinga Shift". Loneliness, he said, became more acute during the first week and last week of each tour. Sergeant Cooper, giving evidence before me, descriped the appellant as "smartly turned out at all times. Technically competent, efficient, knows his job, has good leadership qualities and he spells out what he wants from his shitt and gets it.'' He described a bomb hoax incident where the appellant had behaved creditably. He spoke of an incident where Air Chief -13- Marshal Sir Neville McNamara had described the appellant's shift which he had seen on duty when on a tour of inspection as the most smartly turned out that he had ever seen. Impressive references were placed before me. In one it was said of the appellant, "He is regarded as a very conscientious supervisor whose honesty I have never heard questioned. He is a sincere man and both he and his wife fit in well in the community life experienced in isolated areas." Of much more significance are two assessments of the appellant prepared by Sergeant Cooper. In an assessment prepared on or shortly before 21 April 1982 Sergeant Cooper summarised his view of the appellant as follows:- "A cheerful, loyal, and conscientious member with a commanding and policemanlike appearance, Senior Constable Rowlands possesses the intelligence and ability to become an asset to the Force in areas other than protective security. Currently awaiting the outcome of a number of disciplinary charges, he has not allowed his obvious anxiety to affect his running of a shift and carrying out his duties. He is currently studying to sit the final two segments of the Sergeant's examination." Almost a year later he said in a second assessment:- "Technically competent in his particular field, S/C Rowlands has continued to show sound leadership qualities and has, in his turn-out, presented an example which could well be followed by other members. He has not evinced any great interest in transfer to the general duties field, although he undoubtedly possesses the intellect to succeed in that area. Despite the fact that a 17 month old disciplinary matter against him remains unfinalised, he continues to conduct himself with considerable fortitude in the face of what can only be a severe mental burden." Having had the opportunity to observe the appellant giving evidence, I did not form so high an opinion of his intellectual ability as has Sergeant Cooper. Nevertheless, I see no reason to doubt any of the other comments made by Sergeant Cooper in the two summaries just quoted. They have been of much -14- assistance to me in réaching the conclusion which I have ultimately arrived at. In particular, they establish that the appellant has continued to perform his duties under stress and without any apparent discredit to the Force of which he is a member. They serve also to show that it is most unlikely that he will, now that he has been found guilty of disciplinary offences, 'go bad''. The measure of his contrition may be well gauged by his subsequent conduct. I do not know what materials the Commissioner took into account in imposing: the penalty which he did. Again it would be most desirable if I had been made aware of his reasons. I assume that he had the appellant's service record available to him and that he had his two assessments to which I have referred. What the appellant did was very wrong and he accepts that. Nevertheless, it involves no slightest approval of what he has done to say that his actions were, in the circumstances, understandable. The close physical proximity of a young woman in circumstances where accidental more or less intimate touching was almost inevitable led, I am satisfied, to an all too human if reprehensible result, given that the appellant had drunk more beer than he should have. - I accept the statement made by Motfitt P, with whom Reynolds and Glass JJA agreed in Commissioner of Police v. Gordon [1981] 1 N.S.W.L.R. 675 at p.688 that, "The conviction of a member of the [New South Wales Police] Force is prima facie inconsistent with the performance of his office relating to the enforcement of the law." The fact remains, however, that the appellant has not been convicted of an offence due to the course which these proceedings have taken. Some regard may also be had to the nature of the duties which ne has been performing throughout his service as a -15- - police ofticer. He has rendered and will, if given the opportunity, I am satisfied, continue to render superior service. This is clearlv a case where the long delay in instituting proceedings against him may be taken into account. In all the circumstances I think the proper course is to uphold the appeal and to substitute for the penalty of dismissal the penalty ot reduction in rank from the grade of Senior Constable within the rank of Constable to the grade of Constable within the rank of Constable. rtify that this 4@ nd the Lounteen gs are & . of the preceding Pages 2, 3 ein of hi Honou> . Reasons for sedgnent { Mr. Justice Key i Associate { qt December, ASS |