IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL TRIBUNAL: DATE: duDeNMizny no. F287 1982 PO2RCOCCRELCF oeeeorserene \ / No. 14 of 1982 THE COMMISSIONER OF POLICE against = RONALD ALAN HARRIS DECISION Mr R.J. Cahill 29 April 1983 THE TRIBUNAL DECIDES THAT:- Ronald Alan Harris is guilty of a breach of discipline alleged in the notice dated 20 September 1982 signed by the Commissioner pursuant to Regulation I9 of the Australian Federal Police (Discipline) Regulaticns, and which bears identification number AFP: 29/8283. Ronald Alan Harris is guilty of a breach of discipline alleged in the notice dated 20 September 19382 signed by the Commissioner pursuant to Regulation 19 of the Austraiian Federal Police (Discipiine) Regulations, and which bears identification number AFP: 30/8283. The proceedings be remitted to the Commissioner for the imposition of a penalty on Ronald Alan Harris in respect of the said breaches of discipline. Reds CAHELL S.M. tember IN THE FEDERAL POLICE ) ) No. 14 of 1982 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against DETECTIVE SERGEANT RONALD ALAN HARRIS REASONS FOR DECISION 29 APRIL 1983 The Commissioner alleges two breaches of discipline against Sergeant Harris: = Charge 29/8283 - That you, Ronald Alan HARRIS, a member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal police (Discipline) Regulations by contravening a provision of Division i of those Regulations, namely regulation TS 5 in that at Melbourne in the State of Victoria on ae z ae period hetwee ei 8 ss Gales : om a Serson of persons unknown employed by, or at the premises Gf, Steigers Meat Supply (Australia) Pty. PEGs, Melbourne, victoria, such person or persons being concerned indirectiy with a matter in which the Australian Federal Police was interested or concerned." worn IN THE FEDERAL POLICE ) ) No. 14 of 1982 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against DETECTIVE SERGEANT RONALD ALAN HARRIS REASONS FOR DECISION 29 APRIL 1983 The Commissioner alleges two breaches discipline against Sergeant Harris: Charge 29/8283 - That you, Ronald Alan HARRIS, a member of the Australian Federal Police, were 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 regulation TSy in that at Melbourne in the State of Victoria on Givers Cates during a period hetween 1 May 1989 and 317 March 1931, vou, the said Ronald Alan HaaRis, directly accepted gifts of meat from a person or persons unknown employed by, or at the premises of, Steigers Meat Supply (Australia) Pty. Bt... Melbourne, Victoria, such person or persons being concerned indirectly with a matter in which the Australian Federal Police was interested or concerned." Charge 30/8283 - "That you, Ronald Alan HARRIS, a member of the Australian Federal Police, were guilty of a disciplinary offence -2- specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, namely improper conduct in your official capacity, in that in the month of December 1980 at Melbourne in the State of Victoria, you, the said Ronald Alan HARRIS, attempted to induce Rene Theodore VAN KUYK, a member of the Australian Federal Police, to join in an enterprise concerned with the obtaining of free meat, or the benefit of meat at reduced cost, in exchange for the passing of information to a person or persons unknown, being information that the said Rene Theodore VAN KUYK had acquired, or may acquire, in the course of his duties relating to the affairs or investigations of the Australian Federal Police into the meat industry, such person or persons unknown not. being authorized or entitled to receive that information. Charge 29/8283 is brought pursuant to Regulations and 15. Regulation 18(1)(a) provides:- "A member is guilty of a disciplinary offence and is subject to punishment in accordance with those Regulations if the Member ... contravenes or fails to comply with a provision of Division 1." Regulation 15 provides:- "A member shall not directly or indirectly solicit or accept a gift or gratuity from a person concerned directly or indirectly with any matter in which the Australian Federal Police, or the memoer in the performance of his duties, is interested or concerned." Charge 30/8283 is brought pursuant to Regulation which provides:- "A member is guilty of a disciplinary offence and is subject to punishment in accordance with those Regulations if the member ... is guilty of disgraceful or improper conduct, either in his official capacity or otherwise." 18(1)(a) 18(1) (da) As a preliminary matter counsel for Sergeant Harris challenged the jurisdiction of this Tribunal to hear these charges. It was agreed for the convenience of all concerned that I would determine vite question of jurisdiction when the 'ultimate decision was given. In brief, the argument of the defence in respect to the question of jurisdiction is that the alleged date of both offences (1 May 1980 to 31 March 1981 and December 1980) precedes the statutory creation and operation of this Tribunal and further the formal charges are dated 20 September 1982. The defence submission canvassed the legislation relevant to the operation of this Tribunal (which I do not _—e to srespeseal hemi" and —e in final Summation that the Tribunal has no jurisdiction to hear the matters. et suet is detailed at pages 37-45 of the transcript. The defence counsel argued that there is no epaciiétic provision in the relevant Act or regulations pertinent to this Tribunal that provides the power for the Tribunal to hear charges arisiag out of matters and allegations alleged ro have occurred outside the oeriod of its staturoryv existence. Counsel for the Commissioner of Police submitted that the jurisdiction of this Tribunal to hear these matters is founded specifically upon the provisions of sub-paragraph 67(2)(a) of the Complaints (Australian Federal Police) Act. He argued that the conditions precedent for jurisdiction of the Tribunal are founded in this case on the evidence pursuant to that particular provision. Further he submitted that the offence-creating regulations, namely, regulations 18(1)(a) and regulation 15 in respect of the first charge and regulation 18(1)(d) in respect of the second charge, were operative at the time both of the alleged period of the offences and the time the charges were laid 'and, further, at the time of this Tribunal hearing. The Commissioner's representative submitted that the fact that the Tribunal was established after the alleged dates of the offences is not a relevant consitdexation.. The detailed submissions on behalf of the Commissioner are set out at pages 49-59 of the transcript for 16 March 1983. Regulation 9, as amended, of the Australian Federal Police (Discipline) Regulations (cf. Statutory Rules 900/1982) clearly envisages that this Tribunal would deal with charges relating to incidents prior to the Tribunal's creation, Regulation 9 provides: "(1) Motwith st the Sustralia (Discipline) provisions of cal Police (a) proceedings have been instituted in respect of a disciplinary offence by the Commissioner under regulation 19 of the Australian Federal Police (Discipline) Regulations before the commencement date; and (b) those proceedings have not been heard and determined by the Commissioner under regulation 21, or by the Board under regulation 37, of -5- the Australian Federal Police (Discipline) Regulations, those proceedings shall, on the commencement date, be deemed to have been withdrawn by the Commmissioner. (2) Nothing in sub-regulation (1) affects the power of the Commissioner, on and after the commencement date, to institute proceedings under regulation 19 of the Australian Federal Police (Discipline) Regulations as amended by these Regulations in respect of a disciplinary offence, being a disciplinary offence the proceedings in respect of which are deemed to have been withdrawn by virtue of sub-regulation (1s (3) In this regulation - "Board" means the Disciplinary Board established under regulation 24 of the Australian Federal Police (Discipline) Regulations as in force immediately before the commencement of these Regulations; "commencement date" means the day on which the Complaints (Australian Federal Police) Act 1981 comes into operation." ~ I accept the argument of the Commissioner's representative. Further, the clear legislative intention is that the Tribunal would have the jurisdiction to deal with ) matters alleged to nave occurred oeforé the Tribunal was established, The offence-creating provisions were clearly operative at the relevant time and the fact that the forum, namely, the Tribunal, was created later is not a matter fatal to jurisdiction. I find that the Tribunal has jurisdiction to hear these matters. CHARGE 29/8283 It is my view as a matter of law that regulation 15 requires proof of the following elements:- (1) Acceptance by ee Hartis directly of various gifts. (2) That those gifts were received from a person or persons concerned indirectly with the matter in which the Australian Federal Police was interested or concerned. (3) That the member has actual or at least. constructive knowledge of the "matter" and the fact that the Australian Federal Police had an ~ © * interest or concern in such a "matter". (4) 'phat the interest or concern mentioned is reasonably contemporaneous with the acceptance of the gifts that are subject to the charge. Counsel for the defence made a submission arguing a restricted interpretation of the concept of "matter" as it appeared in regulation 15 in conjunction with the phrase, n "soncern or intecest", The defence submitred that the t =) regulacion snould be restricted to a situation where th =) o nt xc is an active investigation (or a file) or at least a discussion of the particular company or person that is named in the charge (in this case, Steiger's Meats) and further that such a situation must exist reasonably contemporaneously with the acceptance of any gifts. I find such a restricted interpretation of the regulation is not justified. A general investigation into the meat industry of which the particular company alleged is a part - as long as there existed some connection with the company involved - would be sufficient to establish that there was a matter in which the Australian Federal Police was interested or concerned. CHARGE 30/8283 This charge alleges specific contravention of regulation 18(1)(d) which requires proof of the following elements :- (1) That the- member was guilty of improper : conduct. _ - (2) That such improper conduct occurred in his official capacity. (3) That the particulars alleged in respect of the matter are established and comprise "improper conduct". ; It has not -been specifically submitted by the defence euze, if the particulars alleged in respect of this oarticular charge were established, "improper conduct" in tne official capacity of the memoer would not De made out. If the particulars of this charge were eokabi betiad as alleged, I find that they constitute "improper conduct" and, further, such improper conduct would have occurred in the official capacity of the officer. I propose to say nothing further about that except that, in my view, those findings are obvious on the evidence, Before this Tribunal the Commissioner bears the onus of proof and the standard of proof is as stated by Fox J. in Scanes v. Commissioner of Police for the Australian Capital Territory, (1974) 3 A.C.T.R. 20. At pp.26-27, he said, : "TJ should say, in fairness, that in my view the Board used too high a standard of proof when it applied the criminal standard, of proof beyond reasonable doubt. The proceedings were of course disciplinary and not criminal (see R. v. Minister of State for the Interior (1972) 20 F.L.R. 449 at 461-2). The standard of proof in disciplinary proceedings against legal practitioners is on a balance of probabilities (Ex parte Ivor John Greenwood, Attorney- General for the Commonwealth; Re a = ... Barrister .. and. Solicitor . (1972) 20 wo. BYLURS234-and cases there cited). The "Board - was. of the view that it. was 'following'-precedent established in the States, but I have made inquiries and I - find that the Crown Employees' Appeal ' Board -in New South Wales, which deals with - police appeals, among others, applies the civil standard of proof on a - balance of- probabilities (see, for example, Brent and Drooger Vv. Commissioner -of Police, Nos.168 and 169 - of-1971). The gravity of a charge is of course always a matter which influences the mind when applying that standard. In Re the Aopeal of Acthur James Sharp (NO. 195 Of 1967), Kinsella J, whd was then ahe Chairman of fhe Crown Employees' Appeal Board, said: 'Tne onus of proof before this Board of the several charges against the appellant rests upon the Commissioner, and the standard of proof is to be measured by the following passage from the judgment of Dixon J, as he then was, in Briginshaw v. Briginshaw (1963) 60 C.L.R. 336 at 361-2; [1938] A.L.R. 334 at 342: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But a Me =Os reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a. given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." " THE EVIDENCE I propose to jointly review the evidence in respect of both charges. The first witnesses called by the Commissioner were two detective sergeants attached to the Australian Federal Police internal affairs division, 'Their evidence introduced various: records of interview between Sergeant Harris and the two officers. The basic theme of the interviews and records introduced by those officers was that Sergeant Harris denied both the specific allegations involved in the charge and. basically any facts _ that might support those allegations. The interviews conducted are. relevant and later will be discussed in my consideration of the credisility of Sergeant Harris and how this evidence compares with the balance of the evidence called. Sergeant Ray Brown was called by the Commissioner and admitted that he had himself up until about April 1980 been receiving free meat from Steiger's - the company mentioned inthe first charge - and he had done that in -Detective Sergeant Kemp and Detective Sergeant Lewington.. ..~ .-: -10- conjunction with Inspector Burke and that had been done on the basis of the meat being received and never being paid for. He had received such meat on 25 to 30 occasions. He ceased to receive meat in about April 1980 when he was transferred to Canberra. He conceded that he had in fact been dealt with by the Tribunal in respect of allegations arising out of that conduct. He said that in about April 1980, Inspector Burke Giscussed with him Sergeant Harris (amongst other persons) as a possible replacement for him in respect of the "Steiger's free meat enterprise". Sergeant Brown indicated that in June 1982 he had had a conversation with Inspector Burke about Sergeant Harris' involvement but the contents of that conversation have not been led in evidence. He said that in the month of June 1982 he had been summonsed for the Royal Commission into the Meat Industry and he had come to Melbourne to see Mr. McPhee, Q.C. who was assisting the Royal Commissioner. At that time he had an early morning meeting with Sergeant Harris at Walton's yeni 2 cyey ee Snop. He chen told nim that he was making a full rh rt BOE o's oO statement to Mr. McPhee about Ais involvement at Steig and including the fact that he was receiving free meat. He stated in evidence before the Tribunal that Sergeant Harris gave him the clear impression that he too would make a full statement to Mr. McPhee in relation to his involvement with Steiger's. During the conversation Sergeant Harris used words that left Sergeant Brown with the mf j< clear opinion without doubt that Sergeant Harris, too, was accepting free meat at Steiger's and had accepted free meat at Steiger's. Sergeant Brown could not recall Boe express words of the conversation. He formed the opinion as a result of a conversation with Sergeant Harris that Sergeant Harris was involved with Inspector Burke in respect of the matter and, further, that Inspector Burke had indicated that to him in Canberra or rather that was something that he had gleaned from Inspector Burke in Canberra. That discussion with Burke also played a part in the formation of the opinion that he held after this conversation at Walton's Coffee 'Shop. ~ He indicated that "Sergeant Harris was 'a close friend of he awa. Hae panty," Th, Srows-exaninandon, Sergeant Brown conceded that he could not say from his own knowledge that Sergeant Harris took over from him at Steiger's in relation to this free meat enterprise. He.was challenged in respect of some statements made at the Royal Commission that w appear to be conflicting with nis evidence here. In my view Hs) atistactorily explained the variations mentioned. D a At the conclusion of his evidence, questions 105-109 of an interview he had with Sergeant Lewington on 24 August 1982 were put to him. The gist of those answers was that Sergeant Brown indicated that Sergeant Harris had specifically told nim that he received meat from Steiger's but he could not recall the exact conversation but it formed part of a general conversation that he had with Sergeant 212— Harris. He indicated he did not wish to depart from that evidence or from those statements he made in that record of interview. Of course, such evidence cannot be of as great a weight as the sworn evidence given by Sergeant Brown before the Tribunal and tested under cross-examination. However, in the light of the provisions of s.76 of the Complaints (Australian Federal Police) Act 1981, it is the type of evidence that can be admitted in this situation to test the veracity and consistency of Sergeant Brown. Sergeant Brown's evidence obviously goes directly to the proof of charge 29/8283 and has an indirect 'connection with the other charge. On an issue of credit, I aneweven the demeanour of Sergeant Brown in the witness box and, on ee a eee he was quite obviously well disposed to Sergeant Harris. He certainly had no doubt that the conversation-as he was relating it occurred and his evidence does not sit easily with the precise denials of Sergeant Harris in 13.4 ayraaaue etek wien topics of conversation as alleged by Sergeant Brown did not in fact oceur in thac conversation. I find Sergeant Brown a credible witness and a witness who on my analysis had nothing to gain by telling anything but truth to this Tribunal at this particular stage. The next witness called by the Commissioner was Mr. van Kuyk. His evidence goes specifically to the second charge, charge 30/6283, but it does, if accepted, contain an admission by Sergeant Harris of the receipt of free meat, part of a general conversation that he had with Sergeant the relevant issue of charge 29/8283. Mr. van Kuyk indicated that he was a former detective sergeant of the Australian Federal Police and in the period just before Christmas 1980 he was a detective sergeant attached to the Crime Squad in Victoria, in Melbourne. He indicated that he had a discussion with Sergeant Harris on the second floor of the Jolimont establishment of€ the Australian Federal Police and his evidence as to this conversation is specifically set out at pp.18 and 19 of the transcript of the second day of this hearing on 15 March 1983:- "Can you recall what was said during that conversation? --- I cannot remember the exact words but Sergeant Harris asked me if I wanted to go to a meat place in Northcote. And did you ask him what purpose that was for? --- Yes, he said to get some free meat. And did you ask him any more details as to an explanation as to how he came to get this free meat? --- Yes, I said, well, wnat is happening, I asked for an explanation. He said, well, he has taken over From Browny and Burkey and oe goes to tnis meat oliace in Northcote to obtain free meat. Did he mention any particular establish-— ment? --- Not that I can recall, no. Was anything said by Harris as to what he had to do in order the get this free meat? --- From memory, he said all he had to do was tell somebody at the meat place what was going on in relation to meat inquiries and then he would obtain meat. Did he refer to any meat inquiries in particular? --- Not that I can recall. -14- Did he refer to anybody that was purportedly conducting these meat inguiries? --- No. Did he make mention of any police force? --- I cannot remember. I presumed it was what, it was what any inquiries the Federal Police were conducting. I do not think he said it was that. That was probably an assumption on my part, I think. Did he say how he came to take over or take advantage of this perk? --- He mentioned that he was taking over from Browny and Burkey and that - he was shortly to go on leave and he wanted someone to take his place whilst he was going on leave, and then when he came back off leave he would resume with whoever was taking his place. *e —T What. did you -say_ in relation to this 203 % .°. conversation? What was your response' to t ~ it? --- I told him I did not want any - part of it. : Can you discribe Harris' demeanour during the. course of this conversation; "ft4- -~ was it said seriously or said jokingly; "l=. .-how was it said? --- Like -.I thought he was serious, yes." dice vt) In relation' to this matter, relying on 'the. provisions of s.76, I ruled it was appropriate for the Tribunal to consider suosequent conduct of Mr. van Kuyk and, in particular, conversations he had with other officers as to this conversation. Mr. van Kuyk is the only direct witness as to this conversation that specifically forms direct evidence in relation to charge 30/8283. Mr. van Kuyk gave evidence that he discussed the matter unofficially (without making an efficial report) almost immediately with Sergeant Kennedy and Sergeant Barrow and later on (on 21 January 1981 -15- according to Sergeant Shepherd's evidence) with Sergeant Shepherd. He conceded that he never made a formal or official complaint to any superior officer as to the incident. He indicated that Sergeant Kennedy warned him that it was a set-up and gave him an explanation that Sergeant Harris was a possible fizz (or informant) for Inspector Elkington. Mr. van Kuyk indicated he was having problems with Inspector Elkington, the officer in charge of Australian Federal Police detectives in Victoria at the time. In this particular case the defence vigorously Attacked the creait of Mr. van Kuyk. they tendered evidence given by Mr. van Kuyk at the Royal Commission into the meat industry. The defence relied very heavily upon a change of evidence by Mr. van Kuyk relating to an incident that occurred involving a Mr. Merino at the Moonee Valley racecourse. Mr. van Kuyk at the Royal Commission initially denied any involvement of hashish or his knowledge of x cr nashisnh in respect of that incident. Subsequent to other witnesses giving evidence at the Royal Commission he, a few days later, indicated that he had forgotten that matter and conceded that it in fact had occurred. It became clear during the hearing of this case that Mr. van Kuyk sudsequently resigned on advice from the superior officer in relation to his conduct at that Royal Commission. That is what he ultimately, after some lengthy -16- cross-examination, gave as the explanation for his resignation from the Australian Federal Police. It was further suggested by the defence that Mr. van Kuyk fabricated this conversation wen, Sergeant Harris as a form of revenge upon Sergeant Harris for being a fizz, or an informant, as to Mr. van Kuyk's conduct to a superior officer, Chief Inspector Elkington. There is also. some reference to Mr. van Kuyk being a member of the Six Pack, or the Big Six, a clique apparently within the Australian Federal Police in Melbourne at the relevant time. The defence also raised the matter of a threat by Mr. van Kuyk to a policewoman, Lee Haggar, at Tullamarine Airport, where it was alleged that he had said that he would get Sergeant Harris. In respect of that matter he did not deny it but simply said he could not recall the incident. The attack upon his credit was upon his credit as a reliable and truthful witness. The attack on his credit in _ respect to the Royal Commission evidence does not directly relate to the evidence in this case. Despite that attack upon Mr. van Kuyk's credit there s basic questions posed by the Commissioner in this case. If in fact Mr. van Kuyk sought revenge upon Sergeant Harris, why would he not have made an official complaint or report to a superior officer about these allegations? Instead of that he holds an unofficial discussion with colleagues. Sergeant Shepherd, as early as 21 January 1981, had offered to him an alternative - if he did not desire to report the matter to Inspector Elkington ae -17- he could approach an independent' officer, Inspector Anderson. This course he declined. Beyond the "fizz explanation", there is no other apparent motive for his fabricating this allegation and, in fact, Sergeant Harris himself conceded that he and Mr. van Kuyk were on quite a friendly basis around this time. In fact, they shared the newspaper crossword puzzle on a daily basis. ft do not say that lightly because it indicates that no direct animosity existed at about the relevant time. If Mr. van Kuyk's evidence is accepted it provides direct evidence of charge 30/8283 and an implicit admission at least in respect of the other charge, that Sergeant "warris was acéepeitig free meat from the establishment. Certainly, Steiger's specifically is not mentioned. It certainly does' involve allegations tying up Brown and Burke with the matter and of course through their involvement with Steiger's one can draw certain inferences as to what actual establishment was involved. There are clear inferences that it was the information that was co)|0Oobe iy we cr lian Federal Ke 1) FY) i) EC dad; there does nok seem to be any other relevant ey ang wo information that could have been envisaged ae the allegations are accepted as correct. The next witness called was Sergeant Kennedy. He gave evidence at about p.85 of the transcript of the second day of the hearing on 15 March 1983. He indicated, towards the end of 1980, on a Friday before he went on leave, in the morning, Mr. van Kuyk came to his office. He indicated in =19= words to the effect that Mr. van Kuyk had been approached by Sergeant Harris to go with him to Steiger's to get free meat in exchange for information concerning any "meat jobs" that came into the office. Sergeant Kennedy clearly gained the impression that the approach had been made to Mr. van Kuyk recently and he advised Mr. van Kuyk to give the matter "a big miss" as it could be a set-up in view of the: conflict between Inspector Elkington and Mr. van Kuyk and that Sergeant Harris could have been being used in some way to set up Mr.- van Kuyk. Once again, the reasons for my ruling the. admissibility of Sergeant Kennedy's evidence outside the normal rules of * evidence.has been adequately disclosed in the hearing of the matter (at p.92 of the transcript of 16 March 1983). Sergeant Kennedy's evidence goes, in my view, much more to.the assessment of Mr. van Kuyk's credibility and motivation-in the matter than the actual truth or falsity of what was reported by Mr. van Kuyk to Sergeant Kennedy. neoherd. He yu The next witness salled was Sergeant gave evidence (at 0.95) on the third day of the hearing. de indicated that on 21 January 1981, as a result of a telephone call from Sergeant David Barrow, he met both Sergeant Barrow and Mr. van Kuyk at the Cricketer's Arms Hotel in Richmond. Of course, there is some suggestion in the evidence that there may have been a similar conversation wi Gu with Sergeant Barrow and Sergeant Shepherd and, in fact, there was a charge before the Tribunal that has been withdrawn. I specifically exclude from my consideration any suggestion that there was a discussion or an allegation of a similar type by Sergeant Barrow to Sergeant Shepherd or to anyone else - that charge relating to Sergeant Barrow has been withdrawn. Although it is obvious that should be done, it needs to be put on the record. The relevant part of Sergeant Shepherd's evidence in respect of Mr. van Kuyk's allegation on charge 30/8283 is that he (Mr. van Kuyk) indicated to Sergeant Shepherd in words to the effect that he had been approached by Sergeant Harris and told he could get free meat if he told someone if there was any investigation going on in the meat industry. Sergeant Shepherd asked Mr. van Kuyk what he was going to do about it. Mr. van Kuyk indicated to Sergeant Shepherd that he thought it was a set-up and he did not wish to do anything about it for a while. Sergeant Shepherd ou warned him that ne would do nothing about the matter for a while put Mr. van Kuyk would have to tell somebody eventually, otherwise he (Mr. van Kuyk) would leave himself wide open. Sergeant Shepherd then offered to arrange for Mr. van Kuyk to speak to an independent senior officer - independent in the sense of not being involved with Mr. van Kuyk's section - namely, Inspector Anderson of B Division, ¥: is "50s who apparently -was the officer in charge of Sergeant Shepherd's squad at that particular time. Sergeant Shepherd himself was the officer that made the first "official" complaint to a superior officer that set in train eT into the matter. That complaint was made when he was in Sydney on a course on about 18 February 1981, to Inspectors Lamb and Phelan. Inspector Phelan instructed him that he, Sergeant Shepherd, on returning to Melbourne, should take up.the matter with him then. It is clear on the evidence that that is chen the official involvement into the allegations commenced. Sergeant Shepherd conceded that he could be regarded as a "friend: of "Mr." van 'Kugk_and may have been regarded as a member of the six Pack, or the Big Six, and this became evident in cross-examination. He conceded that Steiger's as a company was not specifically mentioned by Mr. van Kuyk in the conversation of 21 January 1981. Further, Sergeant Shepherd said that on his own indetavive he followed Sergeant Harris to Steiger's Meatworks about the middle of March 1931. de saw Sergeant Harris park near the meatworks but did not actuaily see him 'enter or leave. He then saw him come back a short time later and get into his vehicle. Sergeant Shepherd indicated that the whole issue of the allegations was regarded by him with some seriousness. ajc Detective Constable McKenzie was then the next witness called. His evidence goes both to the question of the legal proof of whether the Australian Federal Police had a matter in which they had concern or fnedvent, as well as some evidence as_ to Sergeant Harris' knowledge of the involvement of Steiger's in any Federal Police investigation along with inferential evidence derived from conversations that were alleged by Sergeant McKenzie to have occurred that can be inferred against Sergeant Harris contrary to his own evidence that he had no knowledge of the matter and, in fact, received no meat except purchase of dog meat from Steiger's. Constable McKenzie worked in conjunction with Senior Constable Thomas as the only officers on active inquiries in the meat industry at some stages of the relevant time. He said he worked for the 20 months up to the end of February 1983 on this inguiry and information came to his knowledge in relation to quite a number of meat companies, including Steiger's, at various times. In late 1980 and 1981, Lazar. Meats were the in the investigation and the ailegation was S . GQ (b mM wm neral Figur that local meat was being substituted for export meat. The allegation in late 1980, as I understand it from Constable McKenzie's evidence, specifically involved Steiger's amongst others. Constable McKenzie indicated that at this time and during the relevant period he discussed and sought advice from senior and more experienced officers about the direction of his enquiry (including Sergeant Harris). -22- At one time in the latter half of 1980, Sergeant Harris apparently intervened in a conversation that he was having with Constable Thomas in relation to the question of whether a certain piece of information could be related to a company known as steigart's or a company known as Segals. Constable McKenzie recalled that Sergeant Harris said that he must be mistaking Steiger's for Segals as they were on opposite sides of the town. Further, he informed at some stage around about this time that he told Sergeant Harris that he had some information linking Steiger's, and Walter Steiger particularly, with allegations. Sergeant Harris suggested, according to Constable McKenzie, that there was a possible - mistake with the name Steiger with segals, as eeRageera had — invetedgated previously and they had turned out to be clean. - "Constable McKenzie stated that he was involved with the meat industry between May 1980 and Marcn 1981, the time of the allegation of the first charge, and then later became specifically even more heavily involved on "Operation Orion" in August 198! to February 1983. SE course, "Operation Orion" is well outside the celevant period so us cannot be considered. He indicated that he had had from time to time conversations with Sergeant Harris, where Sergeant Harris had indicated and enguired of him how the meat inquiry was going generally. He was of the opinion that Sergeant Harris along with other people in the office would have been -23- generally aware of what he and Senior Constable Thomas were doing as files were not specifically secured and there was always general discussion about the work involved. Constable McKenzie also inadieatea that he had a conversation with Sergeant Brown in the Australian Capital Territory - when Sergeant Brown was in the Australian Capital Territory which would have had to have been after April 1980 - about Steiger's involvement and he indicated that Sergeant Brown had said that Steiger's had been investigated by him; they were a straight company; it was a waste of time to go further; and Sergeant Brown had said there was an ex-employee spreading vicious rumours about Steiger's and that may be the reason for their involvement. It is also alleged during the relevant period that Sergeant Harris had at one stage said to both Constable McKenzie and Constable Thomas, "if you are going to Steiger's would you let me know". At that time Constable McKenzie indicated he attached no sinister motive to that particular statement. He was later cross-examined about w he suggested in the Royal 7) whether it could navs been, a Commission, if you are going to knock Steiger's off would you let me know". I think on the balance of the evidence before the Tribunal that the latter version should be discounted in respect of Constable McKenzie's evidence. It was suggested in cross-examination that his concentration was on three specific companies and that did not include Steiger's Meats. However, Constable McKenzie ye indicated in cross-examination that in late 1980 there were certain specific general allegations in relation to the meat export industry and an increased activity in the inquiry. He indicated that the officer in — Same him general instructions in relation to undertaking a general inquiry into the meat industry. He conceded in cross-examination that there was certainly no approach to him by Sergeant Harris that he should get free meat in exchange for information and at no stage did Constable McKenzie indicate that at the relevant 3 time during the period in which these charges arise he interpreted Sergeant Harris' interest in terms of any "Sinister motive on >the part.Of Setgeant Harris. "Constable McKenzie indicated there was a general office practice that officers would discuss cases and it was general practice that various people in the office would niow! wees other eteivdes were involved in. It is interesting to note in assessing the credit of Sergeant — that at no time was Bi womensladl that geant Harris' initial discussion with this officer in the Q) ry the phone th 9£& Constadle Thomas involved a searcno o os) Gh o sé | a i) book to ascertain the location of the various companies. [It was later conceded by Sergeant Harris in cross~examination that he had not even instructed his own counsel about that matter until the morning he was giving evidence, which was a time subsequent to the time both Constable McKenzie and Constable Thomas gave evidence. =H. I believe it is appropriate for the Tribunal to perhaps draw the normal inference from that type (oni situation (without attaching any criticism whatsoever to the defence counsel) because it is quite —— on Sergeant Harris' own evidence that that suggestion of the conversation: that occurred between Sergeant Harris, Constable McKenzie and Constable Thomas in respect of the location of Steiger's and Segals_ and the possible geographical confusion, the possible explanation of a phone nook enquiry by Sergeant Harris not being suggested, is relevant. Inspector Elkington was called as the final witness for the Commissioner. Inspector Elkington was the officer in charge (and still is) of the Criminal Investigation Bureau, Australian Federal Police, Victoria. He related in general the history of the Australian Federal Police involvement with the meat industry, including Steiger's specifically.. He indicated that as far as he was concerned the Australian Federal Police had a continuing b was part of che general eiger's. T (Tt interest ia § investigation although the file itself in respect o rn Steiger's may have been put away. He indicated that in October 1980 or earlier, as a result of a complaint from the Meat Exporters Association, that Steiger's, with other companies, was mentioned as part of that general complaint. He gave specific instructions to Constable McKenzie and Constable Thomas at that time to 1 26— examine the whole meat export industry .including Steiger's in response to this complaint. All meat exporting companies in Victoria thus came under scrutiny. He indicated that such developments in relation to the meat industry were common knowledge in the office. All detectives would have known about that and I include that comment to obviously include Sergeant Harris. He indicated that Steiger's was involved in the meat export industry, and the Australian Federal Police interest, for obvious jurisdictional reasons, was concentrated on the export aspect of the meat industry. In his opinion, about 100 companies were involved in this the meat export industry and he would rate At. the conclusion of the Commissioner's case Sergeant Harris was called. Sergeant Harris admitted going Sib to Stéiger's on about three to five occasions. He was vague about the number of times. He indicated that was. from about { i) Oo ro) j kK cr ie) 1980 onwards, but ne claimed that-he went tner ) i) 'S be) > a bal) oO rs purchase dog meat for ais daughter's dog Sut alway it. Sergeant Harris claimed that he never purchased domestic meat for human consumption and indicated in ecross-examination that he never even made any inquiries at the premises in respect to the possibility of purchasing domestic meat for human consumption. < ry iy an He said he continued to go to Steiger's until he was warned off by Inspector Phelan in 1981 on the basis that Inspector Phelan indicated to him that he, Sergeant Harris, nad been seen there by the victorian Special Branch who were on a project there and 'Inspector Phelan advised him not to go there. Sergeant Harris claimed that he did not know of any Steiger's investigation, otherwise he would not have gone there. On the evidence from Sergeant Harris himself, he is an obvious bargain hunter - and I do not use that in a derogatory sense - but obviously from, his own explanations I draw the conclusion he is an obvious bargain hunter for meat and other purchase bargains or.discounts..... _ = Sag He. indicated eat in late 1980 he made no inquiries,.or no inquiries were made of him, or he made no inquiries Lyte or about the meat industry. He indicated in respect of Mr. van Kuyk that he was quite friendly with him during the relevant period, and conceded the daily contact with him over the crossword puzzle. He stated that Mr. van Kuyk's allegations of the conversation in December 1930 were untrue. He Genied any similar conversation that could be attributable to such a topic. He claimed that he made no attempt to induce Mr. van Kuyk or anyone else to accept free meat in exchange for information. -28- He stated that he was not aware in 1980 and 1981 that Inspector Bourke or Sergeant Brown were getting free meat, and he denied specifically he took over Sergeant Brown's part of the operation. He did admit other bargain hunting involvement, duh as the "bacon run" and the "chicken run" and other matters that are mentioned in length in the evidence. In cross-examination, the Commissioner's counsel launched an attack on the credibility of Sergeant Harris on the basis both of specific discrepancies which might appear initially to be minor discrepancies. He also challenged the feasibility of the evidence he gave in relation to lack of knowledge of matters of the meat investigations in the light of other evidence presented before this Tribunal. In one area of cross-examination the Commissioner's representative emphasized some discrepancies in the account of Sergeant Harris as to how he first came to go to Steiger's. He indicated initiaily that Inspector Bourke had made the invitation to him to go to Steiger's, ¥ fk ak the Royal Commission (po.612-6517) and also in various recocds of interview, Exhivit G, for exampl2 questions i5 to 17, he gave conflicting accounts, Mr. Vickery, on behalf of the Commissioner, argued that this conflict has some relevance when obviously Sergeant Harris would have been aware that it was alleged that Inspector Bourke had taken him on as his partner in relation to the free meat enterprise, therefore it was very AIG much in his interest to keep Inspector Bourke out of it, as it were, and this could well explain his inconsistencies and changes in his recollection of the detail of how he first came to be introduced to Steiger's enterprise. He was also challenged in relation to a possible recent invention of the "phone book explanation" for ene Constable McKenzie and Constable Thomas evidence about Steiger's and Segals that I have mentioned earlier. In his earlier records of interview he denied that he could have said to Constable McKenzie or Constable Thomas words to the effect: "if you are going to Steiger''s or in that direction, let me know". - Before the tribunal he conceded-it may have been said 'but. he had. forgotten it. He said that in late 1980 he was aware that Constable McKenzie and Constable Thomas were conducting meat inguiries but had no detailed knowledge of "chem: He was cross- examined about. how - should have known --or= must have known that. Steiger's was involved and was unimpressive on this point. was cross-examined about his lack of knowledge a wD cr rh ree wv (9) that Inspector Bourke and Sergeant Brown were receiving meat. He conceded that he was aware that Sergeant Brown boasted he had a full freezer of meat, but he said he never inquired about its origin. He believed that was a perk that Sergeant Brown wished to keep to himself and he did not inquire how Sergeant Brown came to have his freezer full of meat. -30- He did not concede that he should have inquired or should have been quite aware that Steiger's could have been involved in the supply of meat to Sergeant Brown or that Steiger's could have been under investigation. He did not see any problem in cross-examination in his going to Steiger's without inquiring from Constable McKenzie or Constable Thomas whether Steiger's was actually under investigation. These are matters : that reduce his eredibility and bring into question his truthfulness and motivation. In relation to Sergeant Harris' account of his meeting . Sergeant Brown at the Walton's Coffee Shop (set out. at: pp.187-198. of the transcript) he specifically denied he 'could have acted or. spoken in a way that would have led Sergeant. Brown to. have_a firm opinion that he had been obtaining free meat from Steiger's. _ Further, ~ he had no 'explanation whatsoever how Sergeant Brown could have come to that view. He conceded that in fact he did go on leave on 9 December 1980 until 6 January 1981. He conceded that that, in fact, was a time its in with the alledation of Mr. van fuyvk allegedly &n E nat rr, saying that it was offered by Sergeant Harris for him to take over from Sergeant Harris in respect of Steiger's whilst he, Sergeant Harris, went on leave. He stated in cross-examination he had a good relationship with Mr. van Kuyk and Sergeant Barrow (although the aspect of his relationship with Sergeant Barrow I ee exclude from my consideration) and he had no knowledge of any possible motive for Mr. van Kuyk fabricating such allegations, except the possible "fizz" explanation as he was informed about that — at about that time. He conceded there was an office practice to discuss cases and the work that various detectives were doing and, as I said earlier, he admitted he only instructed his counsel in respect of the "phone book aspect" of the conversation with Constable McKenzie and Constable Thomas on the morning he gave evidence before the Tribunal. Further, he did not admit that it was advisable to check with both Constable McKenzie or Constable Thomas or others before going out to Steiger's. He indicated that he nad no suspicion at all of any Steiger's involvement. Other evidence was tendered at the hearing in documentary form. I have not purported to recite or read all the evidence during this judgment, after all the hearing involved six separate hearing days. This part of the evidence included statements from a director and the foreman r's eats and Detective Senior Constable Bradiey oO Fr D Steiage (Exhibits M, N and 0). I do not propose to discuss this area of the evidence in detail save to say that any suggestion they make about Sergeant Harris' non-involvyement in both offences is in conflict and off-set by the evidence I have canvassed above. The weight and strength of this evidence is not sufficient to persuade me that Sergeant Harris was not involved fn the allegations made. =32% Charge 29/8283 The defence submission first of all involved the specific legal submission that I .commented upon earlier, that the Commissioner has not satisfied the relevant onus of proof or the relevant standard of proof that circumstances or facts existed such as I could be satisfied that the Australian Federal Police had an interest or concern in a matter indirectly involving Steiger's Meats. The defence argued that the general investigation into the meat industry was insufficient and further I would not be satisfied that Sergeant Harris had either actual or constructive knowledge of any Australian Federal Police interest or concern. . = ey SS I indicated earlier that I accepted the Commissioner's argument that a wider interpretation be given to this element of the offence under regulation 15, I do not propose to say any more about that. <= am satisfied on the evidence of Chief Inspector Elkington that the only conclusion the Tribunal could draw is that during — . evant - that is between May 1939 and March 1981 - os eriox pa) oO Le the Australian Federal Police had a continuing interest or 2) concern in a matter indirectly involving Steiger's as alleged in the charge. In my view, that is the only proper inference or proper conclusion the Tribunal could come to as a matter of fact on the evidence before me. The evidence of Constable McKenzie and Constable Thomas does not have any effect on —— ae — the evidence of Inspector Elkington, who after all is the officer in charge of the district and he gave quite clear evidence of the factual interest or concern which is quite adequate to cover the legal requirement of the element of the charge. In relation to the knowledge element of the charge, the evidence of Constable McKenzie and Constable Thomas should be accepted, namely that Sergeant Harris used to make casual inquiries about how they were progressing with the meat industry inquiry; that he had discussed with them the question of Steiger's and had said: "If you are going out that way let me know". That evidence, along with the evidence of general discussion in the office of the work being conducted and. the type of work other people were doing (particularly in view of Constable McKenzie's obvious inexperience and anxiety to have others help him) leads me to the conclusion on the relevant standard of proof that the Commissioner has established that Sergeant Harris did in fact have knowledge of Steiger's involvement in the relevant period for this charge. T the alternative, he must have had constructive xnowledy J on the dasis it would de ib recklessly indifferent of him to merely close his eyes to the fact that Steiger's could have been involved and go ahead and be involved in the receipt of free meat. The defence made further submissions of fact in respect of this charge that I could not be satisfied that Sergeant Harris received free meat. The evidence of -34- Sergeant Brown should be accepted. In my view, s.76 of the Act entitles me to take account of Sergeant Brown's clear evidence that after speaking to Sergeant Harris he had an undoubted opinion that Sergeant Harris was receiving free meat. I reject Sergeant Harris' suggestion that that topic was not covered in the conversation at Walton's Coffee shop. The evidence of Sergeant Brown on this issne is supported firstly by the admission to Mr. van Kuyk that there was free meat being received by Sergeant Harris in the context of the allegations of their conversation. The suspicious conduct of Sergeant Harris through his enquiries of Constable McKenzie and Constable. Thomas in 'respect: of Steiger's and further his specific statement, "if you are going to Steiger's, let me know", is inferential evidence that suggests that Sergeant Harris was more involved with Steiger's Cha 4Be were purchase of dog meat. I_find nothing in the demeanour of Sergeant Brown that would aaa we to doubt him; be fact, the attitude of Sergeant Brown in my view, seemed to favour Sergeant Harris. On the gusstion of Mr. van Kuyxk's evidence, for the reasons I have indicated despite the very heavy attack in respect of his Royal Commission evidence on another issue and his resignation from the police force, it does not appear feasible to me that someone who was inventing these allegations to seek revenge on Sergeant Harris, would not make an official complaint to cause difficulty for Sergeant -35- Harris. Taking into account the attacks upon the credit of Sergeant Harris on the matters I have indicated, along with the matters I have indicated in relation to Mr. van Kuyk's evidence on the relevant are "waa standard of proof, I am satisfied that Mr. van Kuyk's evidence should be accepted. I reject Sergeant Harris' evidence for the reasons I have indicated. There has been no real attack upon the veracity of Sergeant Kennedy or Sergeant Shepherd as to the fact that Mr. van Kuyk reported to them. [In that situation I am satisfied in respect of the first charge that Sergeant Harris .did receive free meat from Steiger's on a number of occasions during the period. The number of . vital to the proof of the "Ree ine Purther, on the evidence of Inspector. Elkington, Constable McKenzie and Constable Thomas and-other matters I Rave méntioned, I am satisfied that contemporaneously with _: the receipt of such meat the Australian Federal Police did have concern or interest in Steiger's Meats as required by b c I mh w actual finding ry > = ee es £ sspears In che light of those ; Sergeant Harris guilty of the breach of discipline alleged in Charge 29/8283. Charge 30/8283 The key issue in relation to this charge is whether or not Mr. van Kuyk's evidence is to be accepted against the contrary denials of Sergeant Harris. wv "-bréaches. "of -36- For the reasons I have indicated, I accept the evidence of Mr. van Kuyk as supported by other evidence that I have mentioned. I reject the evidence and denials of Sergeant Harris in respect of that conversation. In view of that factual finding, in my view, the particulars as alleged in charge 39/8283 are proved. I am satisfied that the particulars are as a matter of law and fact capable of being improper conduct and I am satisfied that such improper conduct occurred in the official capacity of the Seryeant. Consequently, I find Sergeant Harris guilty of the breach of discipline alleged in this charge. The Tribunal finds Sergeant Harris guilty of both = withdrawn during the :héaring. R.J. CAHILL, S.M. (Member ) "discipline charged. Charge ~31/8283 was