[1984] AF PDT 3 IN THE FEDERAL POLICE ) ) No. 18 of 1983 DISCIPLINARY TRIBUNAL ) ki THE COMMISSIONER OF POLICE NER OF POLICE against SERGEANT RICHARD DENIS O'DONOVAN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 FINDING THE PRESIDENT (KELLY J) 22 MARCH 1984 CANBERRA. A.C.T. a Ae THE TRIBUNAL FINDS THAT:- Sergeant Richard Denis O'Donovan is guilty of the disciplinary offence alleged in Charge No. AFP: 15/8384, namely, That he contravened Paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations in that he was negligent in the discharge of his duties in that on or about 17 May 1983 at Melbourne, being a member in charge of a Drug Unit engaged in the search of certain premises at Melbourne, he failed to exercise adequate control and security over exhibits seized, xa IN THE FEDERAL POLICE ) : ' ) Nos. 16, 17 & 18 of 1983 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against INSPECTOR RAY DONALD COOPER ELD COOPER THE COMMISSIONER OF POLICE against STATION SERGEANT NORMAN JOHN CURRIE SS NN YOHN CURRIE THE COMMISSIONER OF POLICE RR EER OF POLICE against SERGEANT RICHARD DENIS O'DONOVAN Et OD DONOVAN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR FINDINGS KELLY J - President ee 23 FEBRUARY 1984 Part of Regulation 18(1) of the Australian Federal Police (Discipline) Regulations (the Regulations) made under the Australian Federal Police Act 1979 (the Act) teads:- "A member is guilty of a disciplinary offence and is subject to punishment in accordance with these 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; (c) is negligent or careless in the discharge of his duties; ~ (£) acts in a manner that is prejudicial to the good order and discipline of the Australian -Federal Police; (g) acts in a manner that brings, or is likely to bring, discredit to the reputation of the Australian Federal Police." By notifications dated 26 October 1983 and duly served the Commissioner of Police instituted proceedings against a number of members of the Australian Federal Police in respect of alleged disciplinary offences. Inspector Ray Donald Cooper was charged that - (a) contrary to the provisions of paragraph 18(1)(b) of the Regulations, he contravened paragraph 9(2) of General Order 6 issued under s.14 of the Act in that between 16 May 1983 and 19 May 1983, at Melbourne, having learnt of circumstances that appeared to him to be evidence of the misconduct of another (b) member, namely that Detective Acting Inspector Norman John Currie had been careless in the discharge of his Auties in respect of his handling of exhibits seized by Police during a search of certain premises (the premises) in Melbourne, failed to furnish forthwith a report in writing. (A.F.P. Charge No. 9/8384); contrary to the provisions of paragraph 18(1)(£) of the Regulations, he, on or about 17 May 1983 at Melbourne, acted in a manner that was prejudicial to the good order and discipline of the Australian Federal Police, in that, having been advised that $900 in moneys, part of a total amount of $1,712 seized by members of the Drug Unit during a search of the premises was missing and could not be accounted for, directed Detective Acting Inspector Norman John Currie to return the balance of those moneys still in the possession of the Police to an occupant of the premises with a view to ascertaining whether she would make a complaint that there was money missing. (A.F.P. Charge No. 10/8384); ae that- (c) contravened Paragraph 18(1)(f£) of the Station Sergeant Norman John Currie was charged (a) (b) Regulations by acting in a manner that was prejudicial to the good order and: discipline of the Australian Federal Police in that on or about 17 May 1983 at Melbourne, he, being the Officer-in-Charge of the Drug Unit, Southern Region, failed to inform the Regional Commander, Southern Region, that $900 which had been seized by members of his Unit was missing and could not then be accounted for. (A.F.P. Charge No. 11/8384). he contravened paragraph 18(1)(c) of the Regulations by being careless in the discharge of his duties in that on 17 May 1983 while at the premises he left unattended in the loungeroom a sealed bag containing exhibits which were tampered with by a person or persons unknown during his absence from that room. (A.F.P. Charge No. 12/8384); he contravened Paragraph 18(1)(b) of the Regulations by failing to comply with paragraph 13(1) of General Order 9 issued under s.14 of the Act in that, on 17 May 1983 at Melbourne, having taken into his possession a bag containing exhibits seized by Police at the premises, he failed to ensure that those exhibits were preserved in their original state and not tampered with. (A.F.P. Charge No. 13/8384); (c) he contravened paragraph 18(1)(g) of the Regulations by acting in a manner 'that was likely to bring discredit to the reputation of the Australian Federal Police in that on 17 May 1983 while in attendance at the premises he directed Detective Acting Senior sergeant'"RieHS¥a Denis O'Donovan to have all exhibits that had earlier been seized by Police at the premises returned to the premises for the purpose of photographing them in situ. (A.F.P. Charge No. 14/8384). Sergeant Richard Denis O'Donovan was charged that he contravened paragraph 18(1)(c) of the Regulations by being negligent in the discharge of his duties in that on or about 17 May 1983 at Melbourne, being a member in charge of a Drug Unit team engaged in the search of the premises, he failed to exercise adequate control and security over exhibits seized. (A.F.P. Charge No. 15/8384). The charges as laid contained more particulars than are shown above but I have set forth their substance sufficiently. At all material times Inspector Cooper held the acting rank of Detective Chief Inspector but now holds his substantive rank, Station Sergeant Currie held sthe acting rank of Detective Inspector and Sergeant O'Donovan held the acting rank of Detective Senior Sergeant. I will refer to them respectively as Chief Inspector Cooper, Inspector Currie and Senior Sergeant O'Donovan. Chief Inspector Cooper was the officer in charge of the Australian Federal Police Drug Unit, Southern Region based in Melbourne (the Drug Unit) while Inspector Currie and Senior Sergeant O'Donovan were members of it. All the charges arise out of an investigation by the Drug Unit into activities being conducted at the premises. The officer immediately in charge ofthe investigation was Senior Sergeant O'Donovan. Following observations and investigations made on 16 May 1983 from which he concluded that there might be prohibited drugs on the premises, Senior Sergeant O'Donovan sought of Inspector Currie approval to do two things. The first was to obtain a warrant under s.10 of the Crimes Act 1914 to search the premises. The second was to recall off-duty officers to take part in the proposed search. Inspector Currie approved both requests. Constable First Class Curran subsequently swore out the warrant. Although Senior Sergeant O'Donovan attempted to recall at least four off-duty officers, only one, Constable Brown, was in a position to respond to the recall, The squad finally assembled for the operation consisted of Senior Sergeant O'Donovan, Detective Sergeant Darrington, First Constables Curran and Tennant (the latter a policewoman),° Constables Brown and Butterfield and a Customs Officer, Mr. Pearse Healey, who was at the time attached to the Brug Unit for experience and training. (For convenience I will refer to officers holding the rank of Constable without any further indication of their grade in that rank.) The decision to carry out the search of the premises was made, I am satisfied, about an hour or a little more before the search party left Police Headquarters for the premises. Senior Sergeant O'Donovan was concerned lest any drugs which might be on the premises should be partially or wholly disposed of during the night. This concern was, I am satisfied, reasonable and rendered it desirable that action should follow hard upon the heels of decision. I am satisfied, too, that Senior Sergeant O'Donovan believed that there were at least three men on the premises and that it waS appropriate that precautions should be taken against possible strong resistance from those men. He acknowledged, with hindsight, that the search should have been carried out by a party of about 12. Nevertheless, it was, I think, reasonable that he should act with a squad composed as set Out above. But the necessity for speed necessarily left little time for planning and briefing. During the briefing Sergeant Darrington's attendance was interrupted by the need to take telephone calls, Constable Tennant's attendance was interrupted while she obtained some torches while Constable Curran came late to the briefing because he had to attend to obtain the search warrant. Constables Brown and Butterfield and Mr. Healey were, it seems, present throughout the briefing. I am satisfied that during the briefing Senior Sergeant O'Donovan indicated that theres would be a reappraisal of the situation once entry to the premises had been gained. I am also satisfied that he did not designate any particular officer as an "Exhibits Officer" i.e. as an officer charged specifically and only with the duties of. receiving exhibits from those who found them, recording exhibits registrar at Headquarters. I think it more content to rely on the experience of the officers making the search squad. He seems also to have. relied,..to- s¢ extent at least, upon the experience which Mr. Healey ha had during the course of his five months attachment to the Drug Unit. Senior Sergeant O'Donovan and Constables Curran and Brown travelled in an unmarked car designated "Delta 6", the radio call sign allotted to it. It left Headquarters fractionally earlier than the second car, designated Tennant and Butterfield travelled with Mr. Healey. Except for their number plates the cars were identical. Entry t¢ the premises was gained, as counsel for the Commissione said, cleverly and deftly, At the time of entry there were at least seven adults on the premises. There were also a toddler and a six weeks old baby. After the names of those present had been taken all adults but two men and one woman were allowed to leave. ~~ The two men were the householder and a boarder while the woman was the wife of the householder. I will call them "the householder", "the boarder" and "the wife", ~ Sergeant Darrington and Constable Butterfield took the boarder into a bedroom and, having closed the door, maintained guard over him. Sergeant Darrington searched the boarder and the bedroom. On Senior Sergeant O'Donovan's instructions, Constable Curran took the householder into the main bedroom and searched him. There was no-one else present during the search. He took from the householder's person a number of items as well as a sum of money which he counted in his presence and which totalled $401.00. Included in the $401.00 were five $50 notes. The householder agreed with the accuracy of the count. Constable Curran placed the money on a doona which was near the bedroom door. He remained in the room guarding the householder and the items he had seized including the money until, having left the room, he gave them to Mr. Healey in circumstances I will describe shortly. He then returned to the main bedroom where the householder had remained, Sometime later Constable Curran who by then had been relieved of the duty of guarding the householder went with Sergeant Darrington to the laundry where he found what he described as a foil of heroin and five foils of amphetamine. These he retained until he handed them to Mr. Healey when he saw him again. He saw Mr. Healey place the foils in plastic exhibit bags. fo Next, Sergeant Darrington and Constable Curran went to the rear of the premises and noticed footprints in some ground that had previously been cultivated? Constable Curran gave evidence that digging then commenced and that he and Sergeant Darrington found a number of weapons, a number of explosive cartridges, fuses and detonators and a thermos flask containing what he said was heroin. Constable Curran retained the flask and subsequently handed it to Mr. Healey. Senior Sergeant O'Donovan had been kept informed of the discoveries as they were made in the backyard. He directed that the explosives and weapons should be lodged in the boot of Delta 6. That car was parked in a bay of a carpark on the other side of the «street from the premises. Delta 5 was parked immediately in front of the premises. Sergeant Darrington locked the weapons and explosives in the boot of Delta 6. Delta 6 was then left unattended for a time. Abundance of caution would have dictated that it should have remained, at the least, under observation after the items seized had been placed in the boot but in the circumstances Io am not Satisfied that there was any breach of duty in leaving the items seized in the locked boot of the car, particularly as a locked boot is normally extremely difficult to open without a key. Meantime Mr. Healey commenced to search inside the house. Under a table he found a number of syringes which he retained. He noted the items in a notebook which he borrowed from Sergeant Darrington. He then found a single == silver foil package which contained a substance which he suspected was heroin. Subsequently, in the kitchen, he found a package containing what he described as a small block of cannabis resin. Then he assisted in a search of the main bedroom where the householder still was. He found two bundles of banknotes in the window area. Each bundle was secured by a rubber band. Mr. Healey placed the two bundles, still secured by the rubber bands, on the doona next to the loose notes which were on it already, having been placed there by Constable Curran. Constable Curran subsequently handed all the money which had been found to Mr. Healey. I think it most probable that the doona with the money resting on it was lifted and carried to the kitchen where Mr. Healey then was. Subsequently all the money appears to have been taken to the dining room for, at the direction and in the presence of Senior Sergeant O'Donovan, Constable Tennant there counted it, Mr. Healey noting the amount of the money by denominations as it was counted. Amongst the bank notes counted were 18 $50 notes including the five to which I have earlier referred. Mr. Healey noted those eighteen $50 notes as totalling $1900.00 instead of $900.00 and recorded the total found as $2,712.00 instead of $1,712.00. Neither the householder nor any other person found on the premises when entry was effected was present when all the money was finally counted. When Constable Curran had found the sum of $401.00 on the householder he had called Senior Sergeant O'Donovan into the bedroom to show it to him. Senior Sergeant O'Donovan noted the five $50 notes then found and noticed Pa i Le that there were numerals written on one or two of those notes. He made a remark to the effect that the householder had sold heroin to persons who had produced marked money. This remark was a ploy to make. the householder believe that police may have arranged for the purchase of heroin with the use of marked money. The householder claimed that the money was the fruits of gambling on the T.A.B. Constable Curran, having found the foil of suspected heroin and the five foils of suspected amphetamine together with the thermos flask, retained them until he handed them to Mr. Healey. He also handed him other items which he had seized but it is not necessary that I consider these items further. 3 In summary, therefore, Constable Curran had found what appeared to him to be drugs and had handed them to Mr. Healey. Mr. Healey had found what appeared to him to be drugs and had retained them. Constable Curran and Mr. Healey had each found money. The explosives and weapons had been found and placed in Delta 6 by Sergeant Darrington and Constable Curran acting together, Nothing else of significance appears to have been found. Constable Curran believed that Mr. Healey had been appointed Exhibits Officer. I am satisfied that no instruction was issued to Mr. Healey that he should adopt the role of Exhibits Officer. He accepted the items given him by Constable Curran and placed them in Exhibit bags but he made no note of them. He placed the flask in one plastic bag and the other items which May be called for purposes of these {~ -12- reasons the narcotic items in one or perhaps. two other bags. Mr. Healey then, on Senior Sergeant O'Donovan's instructions, went unaccompanied to Delta 5 parked, as I have said, in the street outside, a narrow street, and placed the items in the boot of that car which he then locked. He returned to the house. Constable Curran did not note or label the narcotic items which he seized nor did Mr. Healey label those items which he found or those he received from Constable Curran or note them except to the extent already indicated. All these matters took much time. Somewhere between 3.30 and 4.00 a.m. Inspector Currie arrived at the scene to take charge of the operation. »,Senior»,Sergeant O'Donovan gave evidence that during the 'course of what appeared to have been a number of telephone' conversations which he had with Inspector Currie before the latter arrived at the premises, Inspector Currie had told him to get a camera and to photograph the exhibits near where they had been found. -Senior Sergeant O'Donovan did. not carry out that instruction for two reasons. The first was that by the time he had received the instruction the exhibits had been found and placed in the cars. The second was that no camera kit had been taken on the raid. A camera kit and an Exhibit Officer's kit were normally part of the equipment of a small vehicle used by the Drug Unit. However, the car had been undergoing repairs and was not available on the night of 16 May 1983. The equipment including the camera kit had =13- apparently been returned to the equipment store. Senior Sergeant O'Donovan had overlooked the unavailability of the car and camera kit when planning the search. = The five occupants of Delta 5 returned to Headquarters in it. The seized items which had been placed in its boot remained there. At Headquarters the boarder was placed in an interview room and Constable Brown and Mr. Healey were stationed adjacent to that room. Shortly after Sergeant Darrington received a phone call, he cannot remember from whom, instructing that Constable Brown should get a camera kit and return to the premises where he should see Inspector Currie, Constable Brown got the camera kit and drove in Delta. 5 to the premises where he saw Inspector Currie on the footpath outside them. He went inside but did not begin to take photographs until Sergeant Darrington came. Meantime Sergeant Darrington had been told by Constable Butterfield who had returned as ordered to Headquarters in Delta 5 that his presence was required at the premises and that he should return to them in Delta 5 in the B6SE of which the exhibits which had earlier been placed there still were. Sergeant Darrington went back to the premises. When he arrived there he parked Delta 5 exactly where it had previously been, directly outside the premises. He removed from the boot one large bag containing smaller bags inside one of which was a thermos and in the other or others of which were money and some silver foil. He entered the premises and gave the plastic bags containing the money and -14- aca yee foils to Inspector Currie, telling him that the bags contained all the items seized within the house. Inspector Currie noted that one of the sealed bags cont#ined money. Sergeant Darrington gave the bag containing the thermos to Constable Curran and then went with Constables Curran and Brown to the rear yard where some photographs were taken. Senior Sergeant O'Donovan was still at the premises when Sergeant Darrington returned." The other vehicle, Delta 6, was still in the carpark. The items which had been found in the yard were placed as nearly as might be in the position where they had been found and were photographed. Constable Brown took the photographs while Sergeant Darrington and Constable Curran assisted. As well, some small areas which had not earlier been searched were searched and the whole process seems to have taken about an hour. During that period none of the three went back inside the premises but later they dia so and Sergeant Darrington discussed the matter with Inspector Currie and with Senior Sergeant O'Donovan. Subsequently he assisted in the return to Headquarters of the householder. Although Mr. Healey retained the keys to Delta 5 until at least the point where the vehicle was first taken back to Headquarters, he does not remember driving it back. He did, however, remember handing the keys to Constable Brown so that the latter might drive back to the premises. It is almost certain that Mr. Healey drove Delta 5 back to Headquarters. Alternatively he retained adequate control of its keys. Sergeant Darrington gave evidence which I accept, + ard -15- that the keys were handed to him subsequently by Constable Butterfield. Senior Sergeant O'Donovan gave evidence, which I also accept, that after Constable Brown reached the premises in Delta 5 Constable Butterfield was ordered to drive it back to Headquarters so that Sergeant Darrington might return with the exhibits. Why he was not ordered to return with Constable Brown is not clear but I attach no significance to that. There is, therefore, a clear chain of evidence establishing exactly what happened to the kaveito Delta 5 from the time the exhibits were placed in its boot and therefore of their security until Sergeant Darrington handed those from inside the house to Inspector Currie. I am satisfied that Senior Sergeant O'Donovan issued no from hand to hand in such fashion that in due course that passage could be deposed to. Equally I am satisfied that Senior Sergeant O'Donovan gave no instructions to anybody that the exhibits seized should be identified in some fashion upon their seizure and be recorded for subsequent evidentiary purposes. I cannot say with absolute certainty that none of | those who had charge of the keys of Delta 5 at various. stages abstracted any of the money that had been seized. This is not to suggest for one moment that any one of them. is responsible for the deficiency in the money which was subsequently found to exist. All the evidence points away from such responsibility but my concern here is principally with the need which existed to ensure that the best possible evidence was available without risk of muddying the waters. -16- To understand fully the circumstances surrounding the disappearance of some of the money seized, it is necessary to consider the condition of the wife when the Police gained entry to the premises on 16 May 1983. Her condition then was described by Constable Tennant. She appeared to be in an hysterical state. She was in the loungeroom holding the six weeks old baby. She then left the lounge and went to the main bedroom where the other child was. Constable Tennant introduced herself. The wife attempted to assault her, yelling that she wanted to kill her. Constable Tennant took hold of her arms and restrained her. She noted that the wife's eyes were glazed. Her speech was slurred and she was acting violently. She burst into "tears but subsequently calmed down. There waa crecsor to believe that she had been taking heroin. She remained calm and then again became violent and incoherent, appearing totally irrational. She then complained of being hot and cold and said that she was extremely tired and wanted to go to bed. Constable Tennant took her to the bedroom and put her to bed and remained in the bedroom while she slept. Shortly afterwards she woke up but could not remember Constable Tennant or any of the other Police present. She then said that because there were visitors in the house she should clean up and became hyperactive. She began to clean the lounge, appearing oblivious to what was going on about her. She then complained about being tired again. Constable Tennant again put her to bed. She slept a LITLE; Every now and again she would cry. She woke up finally when her mother-in-law arrived. She took some pills and appeared to calm down, ss "1 7- At some time during the — the wife claimed that the moneys found belonged to her mother-in-law. Interviewed _ 31 May 1983, Inspector Currie described the wife as appearing to be under the influence of some form of sleeping tablet or narcotic. Occasionally she would become aggressive. She appeared, however, to understand clearly what was said to her and was able to reply. She was aware, he said, of what was going on around her at that stage. Senior Sergeant O'Donovan described the wife when Inspector Currie arrived as sitting in the lounge "drooping over a cup of coffee or wandering around aimlessly". Senior Sergeant O'Donovan believed that she was taking some form of medication and so informed Inspector Currie. Senior Sergeant O'Donovan had the impression that she was "pretty low, pretty tired and ... almost in a semi-conscious state". Inspector Currie described her as sitting in front of a gas fire drinking a cup of coffee and falling forward from her seat. He said that her eyes were closing and that she was slurring her speech and slipping off the chair. He said that Senior Sergeant O'Donovan had to restore her to the chair. Inspector Currie was interviewed by Detective Acting Inspector Dau on 31 May 1983. The following questions and answers are recorded:- "Q. What was [the wife's] physical condition like at the time you saw her? A. Well she was clearly an. addict, she appeared to be under the influence of some form of sleeping tablet or narcotics, it turned out later that it was a mogadon that she had taken. She was generally latently aggressive and wee would occasionally flare up into bouts of aggression. Q. She was quite lucid when you spoke to her? , A. Oh yes, to say lucid is perhaps. an exaggeration, but she could clearly understand what was being said to her and was able to reply. She is not a highly intelligent person so ... Q. She was aware of what was going on around her at this stage? A. Oh at all times yes." The householder eventually told the wife to go to bed and she appears to have done this. Inspector Currie did not check to see that she had in fact gone to bed and did not know whether she was asleep or awake. He assumed she was asleep. Later, Inspector Currie, Senior Sergeant O'Donovan and the householder were in the loungeroom. The householder asked to go to the toilet. Prudently, Senior Sergeant O'Donovan accompanied him. Inspector Currie followed at a distance. He was concerned that the householder might attack Senior Sergeant O'Donovan, making use of a suddenly produced concealed weapon or some kitchen implement. Unfortunately, Inspector Currie left the Ril bLes he had been given by Sergeant Darrington on a divan in the loungeroom. While he kept the householder and Senior Sergeant O'Donovan under observation, he failed to notice the wife move into the loungeroom., Inspector Currie thought that the trip to the lavatory had occupied no more than two minutes. Senior Sergeant O'Donovan, on the other hand, thought it could have taken as much as five to ten minutes. While not impugning Inspector Currie's evidence, I prefer -19- Senior Sergeant O'Donovan's on this point and am satisfied that in the circumstances there was ample time for the wife to have access to the exhibit bags, to remove= from them whatever she chose and to reseal them. Still later, Inspector Currie handed the exhibit bags to Constable Curran who noted in one of them a quantity of money which he did not count. Inspector Currie instructed him to keep the exhibits in his possession. He performed other tasks and later in the day counted the money to find that there was, he thought, $812.00. Having learnt that there was a discrepancy he reported it to Senior Sergeant O'Donovan who in turn reported it immediately to Inspector Currie and Station Sergeant Ridley. Appropriate searches were carried out in an attempt to find the missing money, eighteen $50 bills. However, these searches proved fruitless. Counsel for the Commissioner did not suggest that any members of the raiding party were responsible for the discrepancy. I think on the material in his possession he was right not to make such a suggestion for, although one cannot be absolutely certain, as I have already indicated, that none of the raiding party took the money, all the evidence points to the wife's having taken it. When Chief Inspector Cooper commenced duty on the morning of 17 May 1983 he became aware of the search of the premises. He learnt of the discovery at the premises of the items to which I have referred and that the Victorian Police had been advised so that matters of particular interest to ~20~ them, namely, the explosives and weapons, might be investigated. He went to the premises, Undoubtedly he was gratified by the results of the search. 'Betweén 2 and 3 P-m. that afternoon he was advised of the discrepancy. He learnt of Mr. Healey's mistake and appreciated that $900.00 Only was missing. He had the cars, Delta 5 and Delta 6, desks where people had been seated and Places where persons involved had been located searched and the moneys checked, The searches and check occupied the rest of the afternoon. Chief Inspector Cooper considered a Mumber of Matters, First he considered and rejected, quite reasonably as I find, that he had to deal with a theft by one of the members of the searching squad. He considered, believing i, the premises to be a brothel, that it could not be proved that the money found was the proceeds of Beng Sales and not of prostitution. He then decided, after consultation with others, that the best course to adopt was to return to the wife the balance of the money in the expectation that she would complain if the amount returned was less than had been seized and she had not abstracted the missing $900.00. on the afternoon of 17 May 1983, therefore, Inspector Currie and Detective Sergeant Impey returned $812.00 to. the wife and obtained a receipt from her for that amount. She made no complaint of any deficiency nor has any complaint been made of such a deficiency by any of the householder, the wife, the mother-in-law or the boarder. Clearly there was a risk that, had the wife abstracted the money, she might nevertheless complain that an amount equal to what she had , -21- abstracted was missing when the balance was returned by the two officers. This was a risk which Chief Inspector Cooper was prepared to take and, having regard onky to his immediate purpose, with justification. In directing the return of the money Chief Inspector Cooper was concerned - (a) to verify his belief that the money had not been stolen by a member of the Australian Federal Police or by Mr. Healey; 5 (b) to shield the members of the Drug Squad from what he expected would be a morale-sapping investigation by the Internal Investigation Division; ~c) to have carried out under his own direction a a thorough investigation into what he called ""sloppy exhibit handling procedure"; and (a) to have a complete statement from the officer _he considered responsible for that procedure so that it might be available for the Internal Investigation Division. Chief Inspector Cooper agreed that he did not report the discrepancy to Chief Superintendent Morrison, his Regional Commander and that it was not until 24 May 1983 that he made a written report on the matter which was first raised with him by Chief Superintendent Morrison, It is convenient to deal first with the charge against Senior Sergeant O'Donovan. The charge as laid particularised a failure to exercise adequate control and =9oe security over exhibits seized. In opening, counsel for the Commissioner stated:- --.it is recognized as an important method of practice to appoint an officer known as an exhibits officer for the purposes of securing and maintaining continuity of exhibits. This was not done during the briefing nor was it formally done at any stage through the conduct of the search. It is alleged that, in relation to exhibits generally, [Senior] Sergeant O'Donovan failed to give an adequate briefing to the members who were to depart on the search." Senior Sergeant O'Donovan agreed that normally exhibits found are retained by one officer. He agreed that ideally, because money and packets of drugs are not easily identifiable, they should when found be checked carefully, sealed immediately and be given an exhibit note. He agreed that "critical factors were the security of the exhibit and the making of a record of the circumstances of its finding. He agreed further that security is best obtained by isolating an exhibit and sealing it as soon as possible after it is identified. Obviously, the appointment of an exhibits officer is a prudent course for an officer in charge of a search operation to follow. Alternatively a procedure which provides for the correct recording of the circumstances of the seizure of items, their identification and their security ought to be adopted. It would clearly have been better had Senior Sergeant O'Donovan appointed an exhibits officer who might enter upon that task after the initial entry into the premises. He appears to have considered the need to do that after successful entry but took no further which was always followed by members of the Drug Unit, I =23— steps to make such an appointment. The failure to appoint an exhibits officer is not, I think, necessarily to be taken as evidence of negligence. Circumstances vary and I am not f to be taken as suggesting that there can only be one proper way to handle exhibits seized. As well, regard must be had to the exigencies of a particular operation. As it happened, only two of the searching squad found exhibits within the house. The identification of those exhibits and the route by which they came eventually into the hands of. . Inspector Currie is, I think, established clearly enough. But that result came about, I think, more by accident than design. Had there been in existence a standard procedure think that Senior Sergeant O'Donovan would _ have been entitled to rely on experienced police officers to implemen iat "otodedura: Obviously no such procedure was adopted in this case nor did he have a squad consisting completely of experienced officers. The critical role played by mr. Healey in the operation put at risk the identification of the exhibits in due course. Io am not concerned to find whether the "chain" would be enough to satisfy a tribunal of | fact to the requisite degree that the items eventually produced before that tribunal were those found and seized in the premises. My concern is solely with the method of dealing with the exhibits. A man may drive a ers negligently and yet cause no damage. So, too, may a police officer conduct a search negligently and yet be in a position finally to give completely acceptable evidence that -55~ exhibits produced to a court are identical with those found during an investigation. While I do not consider that the conduct of Senior Sergeant O'Donovan was greatly negligent, I am nevertheless satisfied that he was negligent as charged. At the same time I think it fair to say that I formed a high opinion of his general competence as an operator in what is clearly a difficult and dangerous field. I can well understand that his major concern with the relatively small squad which he had was the safety of his subordinates and himself. During the course of the hearing counsel for Inspector Currie submitted that the Commissioner had failed to make out a case in respect of Charge No. A.F.P. 14/8384. I aceepted this submission. The case as made "by" the Commissioner necessarily involved the assumption that Inspector Currie's direction to Senior Sergeant O'Donovan that all exhibits earlier seized should be returned to the premises for the purpose of photographing them in situ involved an element of dishonesty. It was submitted that such an action was likely to bring some discredit to the reputation of the Australian Federal Police in that it could seem to other persons that what was being arranged was "a set-up of exhibits apparently in situ", that in fact not being the case. I reject the suggestion that there was any element of dishonesty in the action taken by Inspector Currie in that regard. I have no reason to doubt his honesty and accept that his only purpose was to have a photographic record of a re-enactment, as nearly as might wZGa be, of the circumstances of the finding of the exhibits. Such a re-enactment is certainly no cause for derision and it is a far step from its mere arrangement to ftha that an honest man would use it to perjure himself. I ruled that on that charge Inspector Currie had no case to answer. Charges Nos. A.F.P. 12/8384 and 13/8384 were put in the alternative. The essential element of Charge No. A.F.P. 12/8384 is carelessness. It does not matter, in my opinion, that I cannot be absolutely certain that the wife did in fact abstract from the exhibit bags the sum of $900.00. I am satisfied that, having regard to his observations of the wife to which I have earlier directed attention and re his lack of knowledge as to. her condition at the time when he left the loungeroom to follow senior Sergeant O'Donovan and the householder, Inspector Currie was careless first in not checking the exhibits he received from Constable Curran and secondly in leaving the sealed exhibit bags in the loungeroom without taking any precaution for their safety. I thought the reasons advanced by him to justify his jeervding the sealed exhibit bags in the loungeroom were unsatisfactory and the result of rationalisation rather than conscious deliberate decision at the time. I have taken into account the fact that it is easy to be critical after the events concerning actions taken by a police officer during the course of an operation which remained, to some extent, fraught with difficulty and risk, but making every due allowance I have reached the conclusion that Charge No. A.F.P. 12/8384 is made out against Inspector Currie. It is therefore unnecessary to consider Charge No. A.F.P. 13/8384 further and I will ' dismiss it. = General Order 6 made under the powers reposed in the Commmissioner by ss.13 and 14 of the Act deals with "Conduct, Misconduct and Behaviour of Members - Allegations by Police or the Public". In paragraph 3 of the General Order it is provided enae- "a reference to the misconduct of a member shall be construed as a reference to the manner in which a member conducts himself or any action taken by a member, either in his official capacity or otherwise, such manner or action taken appearing to another member as being evidence of an offence or a disciplinary- offence;". Paragraph 9 of General Order 6 reads:- "9.(1) A member shall not, without reasonable excuse, fail to report the misconduct of any other member. (2) Subject to this General Order, a report of misconduct shall be in writing and shall be made forthwith after a member learns of the circumstances that appear to that member. to be evidence of the misconduct of another member. . (3) Where, in respect of an allegation, it is not practicable for a member to furnish the report in accordance with sub-section (2), the member shall furnish that report as soon as it is practicable to do so thereafter." In a conversation which he had with Inspector Dau on 3 June 1983, Chief Inspector Cooper said, "I have got a job of looking after the welfare of my staff who I understand or you might understand are probably the most effective enforcement tool in this area in drug enforcement. They have been totally demoralised by the fact that they are being treated as second rate citizens by all these IID enquiries. Now my concern is their welfare. I was convinced early that it was not a theft and I was convinced early that an occupier of the premises had removed that =97= money. I was convinced that it was a no win situation which would indicate that a member of our team, or the Drug Unit team, had been careless in some way by permitting an occupier of the premises to access that money whilst it was under his control. I therefore didn't consider it to be a Straight out criminal matter, I understood it to be a sloppy exhibit handling procedure and before I wanted the matter brought to my OIC's attention, I wanted an accurate report submitted through me to him. I was also conscious that the member I asked to prepare the report would possibly be the person who would end up being the fellow who was the one involved in the sloppy exhibit handling. Therefore, I wanted him to commit himself to paper so that when you fellows finally got that report you had in your hand a true factual document and that is what I believed has taken place and that is the reason why I delayed the matter as I did. I believe with my experience in drug enforcement and in police enforcement that that is the proper thing to do under these peculiar circumstances where we had a self allegation being made by the member involved." He was then asked whether the member to whom he had just been referring was Detective Acting Inspector Currie and he agreed that that was so. It is clear from what I have just quoted that Chief Inspector Cooper appreciated very early that Inspector Currie appeared to have been careless in relation to the handling of the exhibits in question. That being the case it was incumbent upon him, as I find, to report that carelessness. Chief Inspector Cooper must have known that carelessness in the discharge of a member's duty is a disciplinary offence subject to punishment under Regulation 18 of the Regulations. A Gisciplinary offence committed by a member of a disciplined force cannot, in my opinion, be other than misconduct. This must be so even without the interpretation provided by General Order 6(3). I am also 06s satisfied that fundamentally Chief Inspector Cooper appreciated this but, being, as I am satisfied, passionately concerned for the good reputation of the Drug Umit, made a number of errors, principally of judgment, in his approach to the problem which he faced. The basic error was the failure to report the discrepancy immediately to his Regional Commander. He appreciated that he should have done this in ordinary circumstances, Obviously such a discrepancy has to be investigated forthwith upon its detection to ensure the best possible investigation into its circumstances. The longer such an favesntoardon is put off the less chance there is that it will be truly effective. His second error was the return of the $812.00 to the wife. Although it may 'be said that it achieved his desired result, namely, that it could not then be suggested that a member of the searching squad had taken the $900.00, it seems to me that this result was obtained at the sacrifice of moneys which were plainly potentially evidence of illegal dealings of some kind. It would have been for the appropriate tribunal of fact to decide in due course whether the money was in fact evidence of unlawful dealing in drugs, the proceeds of prostitution or, as the householder claimed, at least in part, the fruits of gambling. I am satisfied that in doing what he did and in delaying making a report Chief Inspector Cooper was not acting with any dishonest intent. One can sympathise with his desire to protect the welfare of the members under his -29- command but such protection ought not to be achieved at the expense of the greater good of the service of which he is a commissioned officer. "oF In the circumstances I am satisfied that each of the charges against Chief Inspector Cooper has been made out. I propose to permit publication of these reasons for my findings to Chief Inspector Cooper, Inspector Currie and Senior Sergeant O'Donovan and to the Commissioner and officers of the Australian Federal Police who in the normal course of their duties would be entitled or required to see them. As well I propose to publish them to the legal representatives of all parties but I prohibit until further order their further publication, generally and particularly... by newspaper, radio or television or any other method of mass communication, I propose in due course to allow publication of all the proceedings including the decisions and orders in respect of each but there are, in my opinion, good reasons, which I will publish at the appropriate time, why in the public interest such general publication should not presently be permitted. Of course, nothing I say is to be taken as inhibiting the exercise in due course of any right of appeal or the use of these reasons by any Court if it should consider them relevant to any matter it is dealing with and that their publication is appyOpriate. ress I certify that this and the "4 tut preceding pages are a true copy of the. Aiags Reasons for Judssent herein of his Honour Mr. Justice bile ce Terinonw. Associate mest WE # = C's > IN THE FEDERAL POLICE ) ) No. 18 of 1983 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SERGEANT RICHARD DENIS O'DONOVAN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 ORDER THE PRESIDENT (KELLY J) 22 MARCH 1984 CANBERRA. A.C.T.- THE TRIBUNAL ORDERS THAT in respect of the disciplinary offence alleged in Charge No. AFP:15/8384 of which he has been found guilty Sergeant Richard Denis O'Donovan be reprimanded. IN THE FEDERAL POLICE ) ) No. 18 of 1983 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SERGEANT RICHARD DENIS O'DONOVAN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR PENALTY KELLY J (President) 22 MARCH 1984 BY In the course of my reasons for the findings I Proposed to and now make I indicated that I had formed a high opinion of Senior Sergeant O'Donovan's general competence as an operator in what is clearly a difficult and dangerous field. Nothing that has been put to me on the question of penalty indicates that I should revise that opinion. Sergeant O'Donovan served with the Department of Customs and Excise from 1967 to 1970 with the rank of Customs Investigator for the latter part of that period. From 1970 to 1980 he served with the Federal Narcotics Bureau in which he achieved the rank of Senior Narcotics Investigator, serving two years in the Administration and Prosecutions Office for the Southern Region. After transferring to the Australian Federal Police he worked in the Drug Unit, Southern Region for three years until July 1983 when he transferred to the Special Prosecutor's Office. Throughout his long career in the difficult area of drug investigation there has been no occasion before the present matter when his competence in relation to the handling of exhibits or any other facets of his work has been in question. He has never previously faced a disciplinary breach. It was suggested in submissions made to me that the absence of a standard procedure for dealing with exhibits puts an added burden on Sergeant O'Donovan, I do not accept that submission. Senior Sergeant O'Donovan QO is a relatively senior officer who engaged in an operation which may be seen in hindsight to have been carried out with too few personnel. One of them was not a member gf his own service and could not be said to have been adequately trained in the procedures of that service. Although I can accept that the necessity for speedy action led to some oversights in the planning of the Operation, I do not think that that necessity excused what happened, Even had standard operating procedures in relation to the seizure and identification of exhibits been in force, the presence of an untrained "outsider" would have required some special attention hunting: ifs course of planning and briefing to the question of any exhibits that might be found. Nevertheless, it is a fact that the operation was carried out with considerable skill and panache. Taking into account all that has been put to me, I think that in all the circumstances the appropriate penalty to impose on Sergeant O'Donovan is a reprimand. I express the hope that this reprimand may be very soon expunged from his record so that it will not affect his future career and prospects of promotion. I certity that this «aud the preceding pase§¥ are a true cony of the Fy oe ey + os exe ie: Reasons for Juagment herein orf Lis Honour My. Justice hii.