IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL TRIBUNAL : DATE: ) ) ) DE JUDGMENT No. TP Aad 985 No. 15 of 1982 THE COMMISSIONER OF POLICE against : FRANCIS JANES ROWLANDS DECISION Mr R.J. Cahill S.M. 30 March 1983 THE TRIBUNAL DECIDES THAT:- 1. 2. Francis James Rowlands is guilty of a breach of discipline alleged in the notice dated 11 October 1982 signed by the Commissioner pursuant to Regulation Regulations, and which Francis James Rowlands in the notice dated 11 pursuant to Regulation Regulations, and which Francis James Rowlands in the notice dated 11 pursuant to Regulation Regulations, and which 19 of the Australian Federal Police (Discipline) bears identification number AFP:18/8182. is guilty of a breach of discipline alleged October 1982 signed by the Commissioner 19 of the Australian Federal Police (Discipline) bears identification number AFP:19/8182. is guilty of a breach of discipline alleged October 1982 signed by the Commissioner 19 of the Australian Federal Police (Discipline) bears identification number AFP:20/8182. The proceedings be remitted to the Commissioner for the imposition of a penalty on Francis James Rowlands in respect of the said breaches of discipline. R.J. CAHILL S.M. Member IN THE FEDERAL POLICE ) DISCIPLINARY TRIBUNAL ) ) No. 15 of 1982 4, THE COMMISSIONER OF POLICE against PROTECTIVE SERVICES SENIOR CONSTABLE FRANCIS JAMES ROWLANDS REASONS FOR DECISION 30 March, 1983 There are three charges preferred against the member at this hearing:- (A) Charge 18/8182 - Pursuant to Regulation 18(1)(d) of the Australian Federal police (Discipline) Regulations:- "That you Francis James ROWLANDS, a member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, to wit, improper conduct, in that at Watson in the State of South Australia on 21 November 1981 whilst being the driver of an official police vehicle you did assault one Pauline PATERSON, a passenger then in that official police vehicle, by touching her on her right knee, right thigh, right breast and right arm." Regulation 18(1)(d) 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." (B) (C) -2- Charge 19/8182 - Pursuant to Regulation 18(1)(e) of the Australian Federal police (Discipline) Regulations :- "That you Francis James ROWLANDS, a.member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1)(e) of the Australian Federal police (Discipline) Regulations, to wit, acting in a manner unbecoming a member of the Australian Federal Police, when at Watson in the State of South Australia on 21 November 1981 at about 2100 hours, you drove an official police vehicle whilst you were under the influence of intoxicating liquor." Regulation 18(1)(e) provides:- "A member is guilty of a disciplinary offence and is subject to punishment in accordance with those Regulations if the member ... acts in a disorderly manner or in a manner unbecoming a member of the Australian Federal Police." Charge 20/8283 - Pursuant to Regulation 18(1)(b) of the Australian Federal Police (Discipline) Regulations:- "That you Francis James ROWLANDS, a member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1)(b) of the Australian Federal police (Discipline) Regulations, in that on 24 November 1981 at Watson in the State of South Australia, being the member in charge of an official police vehicle, you carried unauthorised passengers in that official police vehicle, to wit, Pauline PETERSON and Gillian VINE, thereby contravening paragraph 11 of General Order 21, a General Order issued under Section 14 of the Australian Federal Police Act 1979." Regulation 18(1)(b) 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 general order ... issued under section 14 of the Act." -3- Paragraph 11 of General Order 21 provides:- "Passengers in Police Vehicles Tse Menpers shall not carry unauthorised passencers in official police vehicles. An authorised passenger will include: (a) Police on official duty; (b) Government officials on official business; (c) Persons in custody; (G) Persons whose carriage is connected with official police business; (e) Persons whose carriage is necessary through illness or an emergency when other forms of transport are not available." Charge 18/8182 There is no specific allegation of official duty or otherwise as Regulation 18(1)(d) provides. In the case of Ninness (No.2 of 1982) that was an important element as there the Commissioner had pleaded specifically that the offence occurred in the member's official duty. There is no specific allegation in the charge here as to whether or not this offence occurred in the constable's official duty or otherwise eas the Regulation provides. It is not fatal to the charge, and it is obvious from the circumstances as alleged, there is no ellegation that this offence occurred as part of his official duty, but in the member's own free time, although it is alleged to have occurred in an official police vehicle. The omission is not fatal to this particular case. Nevertheless it may be preferable and safer to specify exactly the nature of the charge and to have added that the offence is alleged to have occurred otherwise than in the member's official duty. It would be clear to the person charged whether the Commissioner claims the offence occurred on official duty or not. Here, the Commissioner relies upon thes fact that it is an official police vehicle in which the offence is alleged to have occurred. He relies on that fact as circumstances affecting the nature of the improper conduct in this particular case. As the allegation is that the offence occurred in an official police vehicle this provides the connection with the Australian Federal Police. Although the rules of evidence do not specifically apply to these hearings pursuant to section 76, sub-sections (2) and (3), the allegations and the evidence suggest a sexual approach by the constable of an introductory sort. The rationale behind special rules concerning' sexual offences, such as the reguirement of corroboration, the admissibility of complaint and things of that nature, has some significance. In the assessment of evidence this rationale must be considered. Charge 19/8182 The "driving under the influence" element in this charge is not pleaded specifically as a statutory offence or a particular offence under the Regulations, but rather a circumstance that justifies a finding of unbecoming conduct. The allegation as pleaded in the charge does not involve the common element of driving under the influence to such an extent as to be incapable of proper or effective control of a motor vehicle. Such an element is specifically required in a number of jurisdictions (for example, in Victoria, South Australia and the Australian Capital Territory). It is appropriate to apply the approach of the New South Wales courts where the element of "driving under the influence" simpliciter is required to be proved. The term "driving under the influence" requires the alcohol must affect the driver to such an extent as to materially alter his normal condition, and have a material or relevant effect upon his ability to drive. It is not necessary to show that he had an incapability of proper or effective control of his vehicle. For example, if he drove in an aberrant manner, one might draw inferences from that that he was affected by alcohol, and that, in fact, is one of the allegations in this case. The courts have differed over the years as to the admissibility of lay opinion of persons under the unfluence of alcohol. Some decisions have taken a very strict approach that an unqualified lay person may give evidence of observations from which the court may draw inferences that a person is affected by alcohol but he cannot give the opinion itself. However, there is a contrary line of authority which I find appropriate for this Tribunal to follow. - Cf. R. v. Whitby, (1957) 74 W.N. (N.S.W.) 441; R. v. Kelly, [1958] V.R. 412; R. v. McKimmie, [1957] V.R. 93 and R. v. Spooner, [1957] V.R. 540. Those cases hold that there is a class of opinion evidence, such as speed, weather and sobriety or drunkenness, about which a person of normal years and experience of life in the community can give an opinion. Of course, the weight of that opinion needs to be analysed in view of the experience and qualification of the person so to do. For example, a police officer with many years dealing with people affected by alcohol would have a more reliable opinion than a lay person who may have seen people drunk, but does not have any special expertise experience. The problems that arise in this situation have recently been discussed in an article in the Criminal Law Journal entitled "Witnesses and unfitness to drive through alcohol" by Mr. Frank Bates - (1978) 2 C.L.J. 273. I find the opinions of the three witnesses in this case as to the member's sobriety admissible. There is a need to closely examine the weight of each opinion. The two female witnesses considered the member was drunk, and had varying experience to make that judgment. Constable Loehr, the colleague of Senior Constable Rowlands, whilst he had been a police officer, indicated he claimed no special expertise in his role as a police officer that qualified him more than a lay person to give an opinion. The Commissioner here relies upon lay observations as to the effect of alcohol upon Senior Constable Rowlands, along with circumstances such as alleged aberrant driving, and asks the Tribunal to draw the relevant inference on that evidence. There is no reliance here (as Senior Constable Rowlands himself points out in his submission to the Commissioner, in his evidence and also in answer to questions by the investigating police officer, Sergeant Burton) upon scientific or objective evidence of a breathalyser result or a blood test. He claims the mere opinion of lay persons that he was "under the influence" is insufficient. I reject that submission. Charge 20/8182 Senior Constable Rowlands pleaded guilty to this charge. Nevertheless it is the function of this Tribunal to assess the evidence and make a finding upon the charge. I have heard the evidence (undisputed by Senior Constable Rowlands) that satisfies the proof of the particulars charged. I find the member guilty of this breach of discipline charged. Senior Constable Rowlands, despite an invitation by me, still insisted as was his right, to continue unrepresented at this hearing. Some of the problems adverted to in recent cases such as Foster v. R., (1982) 38 A.L.R. 599, and McPherson v. R., (1981) 37 A.L.R. 81, arose in this case. I attempted, consistent with my role as a member of the Tribunal, to advise Senior Constable Rowlands of his rights. Nevertheless, Senior Constable Rowlands appeared to be a@ person not experienced in court proceedings, and on many occasions despite repeated invitations on my part was unwilling to fully test the evidence on the crucial points of his defence. As to charge 18/8182, it was always his defence that he may have touched the lady as alleged, but any such touching was accidental and part of his role of driving the vehicle and changing gears in the crowded conditions that existed in the front seat of the vehicle. He also declined to test fully the accuracy of observations of him by people who claimed that he was intoxicated. In this situation the Tribunal has to tread very carefully and maintain its neutrality. At somé stages of the hearing I found it necessary to attempt to put to various witnesses the defence that the member was trying to rely upon, although he himself seemed unwilling to do just that. Senior Constable Rowlands declined to give sworn evidence in this case. Certainly he was able to rely, and did rely, upon the submission he made to the Commissioner, which in brief indicated he was not guilty of the offences, and indicated any touching was accidental and he was not under the influence of alcohol. I certainly do not infer guilt from his failure to give evidence. But the failure of Senior Constable Rowlands to give evidence creates difficulties for the Tribunal. The Tribunal does not have the opportunity of evaluating his evidence on oath under cross-examination. The onus of proof remains on the Commissioner on the balance of probabilities (with the necessary cautions as to the seriousness of the matter and the effect and consequences to the member and other considerations referred to in Scanes v. Commissioner of A.C.T. Police, (1974) 22 F.L.R. 262, per Fox J, at pp.268-269). THE EVIDENCE The background facts are largely undisputed. Senior Constable Rowlands, with his colleague Constable Loehr, were stationed at Maralinga in the outback of South Australia. They were stationed there in a security role and on a voluntary basis for a six to eight week period. The nearest civilisation to their station was a settlement, Watson, South Australia, some 40 kilometres away? Watson is a thriving community of five houses, a railway settlement, with the only direct communication with the outside world a weekly supply train. On the day in question the two had travelled from Maralinga to Watson to meet the supply train. fThere they came into contact with a number of people involved in this matter, particularly Mrs. Paterson and Miss Vine. They had previously met Mr. Sullivan, with whom these ladies were staying, and they more recently had met Mr. Paterson, Mrs. Paterson's husband. At that particular time they collected their supplies, including the vital supply of some alcohol for their recreation, and some mention was made at that time of a "night rabbit shooting trip". After conversation and some socialisation they returned back to Maralinga arriving at about 2.30 p.m. They departed again from Maralinga to Watson about 8 p.m. in the evening. During the period 2.30 p.m. - 8.00 p.m. it is common ground that some alcohol was consumed by both officers. Senior Constable Rowlands concedes and claims that he consumed only five to six cans in that period of about six hours. Constable Loehr says he himself may have consumed a little less than that. (The detailed drinking history is discussed later when I come to consider charge 19/8182.) The officers arrived at Watson between -10- 8.30 p.m. and 9.00 p.m. On their arrival the two ladies came from the house where the officers had pulled up, and it was suggested that perhaps they would endeavour to locate Mr. Sullivan and Mr. Paterson who had gevarted' apon this "rabbit shooting enterprise". The ladies were invited to accompany the two officers in the police land rover. The group then entered the vehicle and conditions were crowded. The police land rover had only a front bench seat. Senior Constable Rowlands was driving. Next to him waS Mrs. Paterson with her infant daughter (then about 12 months old) sitting on her knee, her legs were astride the gear lever. Next to Mrs. Paterson was Miss Vine and on the outside on the passenger's side was Constable Loehr. The vehicle departed. There is discrepancy as to the distance travelled (estimates vary to 12 kilometres) before the lights of the other vehicle were sighted upon the "spot shooting enterprise". Contact apparently could not be made and the attention of the two men who were shooting could not be attracted. The group returned to Watson, at which time there was some further socialising and eventually the two officers returned to Maralinga. Those facts are undisputed. The allegations in relation to charge 18/8182 arise both on the trip out to where the land rover came into eye contact with the lights of the other vehicle, and also on the return trip. It is alleged that on the trip out there was some touching of the right thigh and knee area of Mrs. Paterson by Senior Constable Rowlands, from the knee up to the higher thigh and also some touching of her right breast. There is some ea fs conflict in the exact description by Mrs. Paterson and the description given by Miss vine. Mrs. Paterson is prepared to concede that some of the touching of the leg may have been accidental in the gear changing process. = However, Mrs. Paterson insists that on a number of occasions, she forcibly pushed the constable's hand away, only to find it back again and, in fact, her evidence is such that it would rebut, if accepted, accident. Miss Vine indicates she became aware of certain touching actions and _ pushing actions, both on the part of Senior Constable Rowlands and Mrs. Paterson. Matters were drawn to the attention of Miss vine by Mrs. Paterson herself. There are some conflicts in the exact manner of touching and the position of touching. Nevertheless, both the ladies give positive evidence that, if accepted, would rebut completely the suggestion that such touching as alleged was accidental. During the journey the land rover appears to have wavered off the bitumen road on a number of occasions. At one stage it went off so far that it struck a shrub and in that incident the arm of Constable Loehr on the passenger side suffered some injury. During the trip, Miss Vine is alleged to have said to Constable Loehr, "Will you tell your Mate to keep his hands on the wheel?" Constable Loehr (whilst he cannot recall many of the other allegations and is not in a position to deny them) does concede that that conversation occurred. Miss Vine claims that complaint was made because she detected Senior Constable Rowlands actually touching the body of her sister, Mrs. Paterson. That particular factor can be regarded as corroboration of the nif evidence of the two ladies. It does support their claim that this was not an accidental touching and both Mrs. Paterson and Miss Vine had taken certain steps to try and prevent any further touching by the Senior Cénstable of Mrs. Paterson. The conditions were dark in the outback of Australia. The panel lights on the land rover were not operating. Conditions in the front of the vehicle were crowded. But it is unusual that such sexual approaches would be made to a lady where other people are present and where her own infant is on her knee. All of these matters must be taken into account. There is no middle ground in this case. I do not believe Miss vine or Mrs. Paterson can be mistaken on their evidence. Their evidence is either accepted or it is not. As there is no room for mistake if I were to reject their evidence, I would need to consider what motive they have for making such an allegation, which has obvious and dangerous effects upon the career of Senior Constable Rowlands. Senior Constable Rowlands, in submission from the bar table, indicated he knew no direct motive for these two ladies to invent such a story. There waS a mention by him (supported by Constable Loehr) that there may have been some animosity between Senior Constable Rowlands and the Sullivan family with whom Mrs. Paterson and Miss vine were staying. Nevertheless, they had only been there for a short period and if one was to draw the conclusion that they were inventing these matters to falsely incriminate Senior Constable Rowlands, it is curious that such allegations would be made in a situation where a number of people are present and when the lady has an infant on her knee. aq Be Senior Constable Rowlands in his defence does concede he may have been involved in some touching of both the breast and the leg of the lady but claims in all circumstances it was accidental and unintentional? Further, it is alleged that after the group had arrived back at Watson and after Constable Loehr and Miss Vine had left the vehicle, there was a specific squeezing of Mrs. Paterson's breast. In respect of that matter, there is really no corroboration. Miss Vine claims there was an incident between her and Senior Constable Rowlands after Mrs. Paterson and Constable Loehr had left the vehicle outside the house at Watson and gone inside. These allegations involved some throwing of stones, threats and pulling of hair. This last matter apparently first came to notice during the Tribunal hearing. I have some grave doubts about that matter. Mrs, Paterson appears to be a lady of average intelligence. She appears to have been truthful and does not appear to have exaggerated. She has some difficulty in recalling the exact detail of what occurred, and there is some conflict internally within her evidence and with Miss Vine's evidence. My observation as she gave evidence in the witness box is that she is not an obvious liar. Miss vine is a young lady who unwittingly but not necessarily (intentionally) does exaggerate in her anxiety to protect her sister and her reputation. I draw that conclusion particularly in relation to the incidents alleged to have occurred outside the vehicle between her and ~thm Senior Constable Rowlands prior to them entering the house. And I specifically reject her evidence on that issue. Constable Loehr found himself in an invidious position. His colleague is accused of these matters. Throughout the evidence in relation to this assault Constable Loehr indicated he did not recall incidents or he did not hear conversation or was not in a position to see or hear the same. But equally he often indicated he was not in a position to deny that incidents occurred. I find Constable Loehr a witness obviously attempting without any criminal intent, to do his best by way of his colleague, and to be certain that he was not going to Say anything that might affect his colleague, unless he was absolutely certain of the particular incident. His evidence does not greatly assist me. He is not in a position to greatly Support Senior Constable Rowlands but equally he is not in a position, in the manner and content of his evidence, to denigrate or completely attack the credibility of the evidence of the two female witnesses. I am satisfied that many of these incidents did occur. There were events of touching of the leg, thigh and knee of Mrs. Paterson and some touching of her breast throughout the evening. I do not accept that they were as serious as Miss vine described. Miss vine exaggerated. I find no actual injury was suffered by Mrs. Paterson, but I find on the evidence of Mrs. Paterson and Miss vine that the touching was not accidental. -15- On the proper standard of proof (cf. reference to Scanes v. Commissioner of A.C.T. Police, supra), the Commissioner has proved the particulars alleged in Charge 18/8182. I find that the particulars ee ee "improper conduct" pursuant to Regulation 18(1)(d). The Regulation has been proved to have been contravened. Turning to the second offence, - Charge 19/8182, Mrs. Paterson and Miss vine described Senior Constable Rowlands as drunk. Mrs. Paterson described him on her initial observation on that night when he arrived at Watson in the early evening, as more drunk than the other officer. Mrs. Paterson referred to his manner of speech rather than his manner of walking. Miss Vine gave similar evidence. Both ladies cannot be said to be any more expert than the average member of the community in giving such evidence. However, Miss Vine indicated that she had had some problems with a previous de facto husband who used to drink a lot, and she relied upon that experience apparently to make a judgment about the effect upon Senior Constable Rowlands of any alcohol he had consumed. The driving conduct that is the subject of this charge is not specifically particularized. I take the driving by the member to and from Watson to locate Messrs. Sullivan and paterson on "their shooting enterprise" to be the scope of the driving under scrutiny for this charge. The exact drinking history of the member is unclear. He has conceded he drank five to six cans. No one has given any evidence precisely as to the size of the cans, but I must infer in the favour of the officer that he meant "465 the smaller "normal" size 130z. cans. There is no evidence whether it was light alcohol beer or standard alcohol beer. The evidence of Constable Loehr is vague as to how much was consumed by the member. Initially, he Spoke about five, six or so, cans, obviously in support of his colleague. He is then given the opportunity of refreshing his memory from a statement. The tone of his evidence then changes. I pressed him on the point of, "How could he calculate it?" He indicated that during this drinking period of 2.30 p.m. to about 8.00 p.m. (the time they departed from Maralinga for Watson); "Constable Rowlands drank more than he did, and he drank at a fairly steady pace." The steady pace he defined as about one can per half hour. If one makes that assessment of five and a half hours, it amounts to approximately 11 or 12 cans. Even if it were 10 cans, that amounts to a heavier drinking bout than Senior Constable Rowlands is prepared to concede. Constable Loehr indicated that he felt that Senior Constable Rowlands was a "little affected by alcohol", and his driving was a "bit wonky", and he had reservations about allowing him to drive from Maralinga to Watson. However, in defence of his colleague, Constable Loehr indicated that perhaps there was some more drinking later, when they returned from the drive to seek out Messrs. Sullivan and Paterson that may have accounted for his condition later in the evening. Mrs. Paterson, Miss Vine and Constable Loehr all recall some "aberrant driving", "some wandering around the road", "wonky driving", and an incident involving the car leaving the road and striking the small tree in which the i oe Constable suffered an injury - all as part of Senior Constable Rowland's driving. Although aberrant driving is not required as an element of this charge, it can be used by the Commissioner to infer that if the member was not able to control the vehicle properly he was affected by alcohol. I rely upon the fact that I am satisfied the allegations in respect of Mrs. paterson occurred. As a matter of common sense, one can consider the incidents - the situation of Mrs. Paterson sitting close to Senior Constable Rowlands with a child on her knee, her sister next to her and another constable on the outside. The actions of the member in that context are not those of a normal sober citizen. One could infer from that type of conduct that he was not acting normally. To make such approaches of an introductory sexual nature would be dangerous for him in the presence of others and would be unlikely to be successful. I find Senior Constable Rowlands was affected by alcohol to the extent that there were material changes in his ability to behave himself and act in a proper manner. His condition was not normal because it was affected Materially by alcohol. I am satisfied that he drank in excess of five to six cans and as many as 10 to 12 cans of beer prior to the driving of the police land rover from Watson to search for the two men on the "rabbit shooting enterprise" and the return trip. He was, in the sense alleged, "driving under the influence". Further, I find that driving under the influence in the present circumstances in an official police vehicle (although outside normal working hours) constitutes "conduct =pS unbecoming a member of the Australian Federal police" within the terms of Regulation 18(1)(e). (a) The member is guilty of the Stach of discipline specified in charge 18/8182. (b) The member is guilty of the breach of discipline specified in charge 19/8182. (c) The member is guilty of the breach of discipline specified in charge 20/8182. I make no order made for costs. The proceedings will be remitted to the Commissioner for the imposition of a penalty upon the member in respect of the above breaches of discipline. These reasons are handed down in Canberra. The member resides in Adelaide and it was clearly envisaged by me that he would not be present at the publication of my decision, I have instructed the Registrar to notify forthwith by telephone the member of the findings I have handed down. R.J. CAHILL, S.M. et ee the Member 30 March, 1983