[484] AEPDT IN THE FEDERAL POLICE ) DISCIPLINARY TRIBUNAL No. 2 of 1984 a THE COMMISSIONER OF POLICE against FIRST CONSTABLE PAUL DAVID MCCOWAN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 ORDER THE PRESIDENT (KELLY J) 7 JUNE 1984 CANBERRA, A.C.T. THE TRIBUNAL ORDERS THAT:- 1. Charge No. AFP:21/8384 against Detective (P) First Constable Paul David McCowan (the respondent) be dismissed, The Commissioner pay the respondent's costs of and incident to the charge. IN THE FEDERAL POLICE ) No. 2 of 1984 DISCIPLINARY TRIBUNAL THE COMMISSIONER OF POLICE against FIRST CONSTABLE PAUL DAVID McCOWAN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 FINDING THE PRESIDENT (KELLY J) 7 JUNE 1984 CANBERRA, A.C.T. « THE TRIBUNAL FINDS THAT Detective (P) First Constable Paul David McCowan is not guilty of the disciplinary offence alleged in Charge No. AFP:21/8384, namely, That at or about 3 o'clock in the forenoon on Thursday, 21st October 1982, at the intersection of Wickham and Gipps Streets, Fortitude valley in the State of Queensland, he whilst in the company of Detective (P) First Constable L.F. McQueen, did conduct himself in an improper manner otherwise than in his official capacity, being indirectly knowingly concerned in the use of lewd and derogatory words, by the said Constable McQueen, concerning Mr. Malcolm Sue, of Malcolm Sue Security Services Company of 608 Ann Street, Fortitude Valley when in conversation with three employees of the said Mr. Malcolm Sue, namely Peter McCulloch, Daniel Walker and Roman Li at the place and at the time aforesaid. And further at the place and at the time aforesaid, that he was indirectly knowingly concerned in use of lewd and derogatory words directed at Mr. Roman Li one of the aforesaid employees of the said Malcolm Sue. IN THE FEDERAL POLICE ) ~~ No. 2 of 1984 DISCIPLINARY, TRIBUNAL ) THE COMMISSIONER OF POLICE against FIRST CONSTABLE PAUL DAVID McCOWAN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR FINDINGS KELLY J - President 7 JUNE 1984 Detective (P) First Constable Lex Frederick McQueen and Detective (P) First Constable Paul David McCowan to whom I will refer as Constable McQueen and Constable McCowan respectively were charged with disciplinary offences arising out of an incident which took place in the early hours of the morning of 21 October 1982. Constable McQueen was charged that he was guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations (the Regulations) in that at or about 3 a.m. on Thursday, 21 October 1982, at the intersection of Wickham and Gipps Streets, Fortitude Valley, Queensland, he, while in the company of Constable McCowan, conducted himself in an improper manner otherwise than in his official capacity by the use of lewd and derogatory words concerning Mr. Malcolm Sue 'of Malcolm Sue Security Services Company, when in conversation with three employees of the said Malcolm Sue, namely Peter McCulloch, Daniel Walker and Roman Li and further that at that time and place he used lewd and Gerogatory words directed at the said Roman Li. (Charge No. AFP: 20/8384.) Constable McCowan was charged that by virtue of the provisions of sub-regulation 18(2) of the Regulations he was guilty of a disciplinary offence specified in paragraph 18(1)(d) of those Regulations in that at the same time and place he, while in the company of Constable McQueen conducted himself in an improper manner otherwise than in his official capacity, being indirectly knowingly concerned in the use of lewd and derogatory words by Constable McQueen concerning Mr. Malcolm Sue when in conversation with the said three employees and further that at the same time and place he was indirectly knowingly concerned in the use of lewd and derogatory words directed at Roman Li one of the said employees. (Charge No. AFP:21/8384.) In response to the institution of proceedings against him each officer stated that he did not admit to the truth of the matters alleged and sought a hearing before the Tribunal. Paragraph 18(1)(d) of the Regulations is as follows:- "A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member - (d) is guilty of disgraceful or improper conduct, either in his official capacity or otherwise." Regulation 18(2) reads: "A member who aids, abets, counsels, procures, or by act or omission is directly or indirectly knowingly concerned in, or party to, the commission of any disciplinary offence shall be deemed to be guilty of that disciplinary offence and is punishable accordingly." By agreement the two charges were heard together. It was conceded that the proceedings had been validly instituted. Appropriate certificates under s.68(1) of the Australian Federal Police Act 1979 (the Police Act) established that the two officers were and had been since 19 October 1979 non-commissioned police officers of the Australian Federal Police in that component performing general police functions. Peter Donald McCulloch gave evidence that on the night of 20/21 October 1982 he was carrying out his duties as a patrolman employed by Malcolm Sue Security Services. He was accompanied by two fellow employees, Daniel William Walker and Sui Man Li also known as and referred to throughout the proceedings as Roman Li. Each of the three was wearing a uniform consisting of a black shirt to which was sewn a yellow badge on which the words "Malcolm Sue Security Company" appeared, black trousers and a black. belt. Each was carrying a torch described as a baton torch and each had a handcuff case attached to his belt. Mr. Walker was carrying a firearm of some sort and either he or Mr. Li was carrying a two-way radio. There was a nightclub known to the three patrolmen as "Tony's Night Club" and to the two police officers as "Harrington's" situated below street level on the northwestern side of Wickham Street between Brunswick Street and Gipps Street. In the area with which I am concerned Wickham Street runs from northeast to southwest, Brunswick and Gipps Streets run from northwest to southeast while Barry Parade, another street mentioned in evidence, runs generally but irregularly north-south with its northern end debouching at a point one full block northwest of Wickham Street into a five ways of which Brunswick Street forms two ways. The duties of the three patrolmen required them to inspect premises to ensure that they were locked properly and had not been interfered with. According to Mr. McCulloch Ke and his companions were walking past Tony's Night Club to which access was gained by stairs leading down from Wickham Street when he saw standing outside it two men who stared at him and his two companions as they walked towards the head of the stairs. As the three walked past, one of the two men said, "Are you guys for real?" Mr. Li gave evidence that he first noticed the two men when they were one or two steps from the top of the stairs leading from the basement to street level. He thought one of the two, Constable McQueen, was "a bit drunk", seemingly more affected than Constable McCowan who, nevertheless, appeared to Mr. Li to have been drinking intoxicating liquor. Neither in his evidence before the Tribunal nor in a statement which he made in his own handwriting in Chinese. within 24 hours of the events did Mr. Li make any reference to the question "Are you guys for real?" or words to that effect. Mr. Walker gave evidence that as he and his companions walked past the door of Tony's Night Club the two police officers were coming up the stairs and one of them said, "Are they for fucking real?" In his statement made on 20 October 1982, the question was recorded as "Are you guys for real?" All three patrolmen agreed that they continued to walk down Wickham Street towards the intersection of that street and Gipps Street. Messrs. McCulloch and Walker gave evidence that they looked behind from time to time and saw the two police officers following them. The two patrolmen put the interval between themselves and the two police officers following them along the street as something of the order of seven to eight yards. Constable McQueen gave evidence that, having reached street level, he and Constable McCowan turned left and.walked about 10 yards until they realised that the route they were taking to where Constable McQueen's car was parked in Barry Parade was the longer way round. He said they then stopped, turned round and walked back down towards Gipps Street. The patrolmen were some 15-20 paces ahead of them. In my opinion, it matters little which of the two versions as to the interval between the groups is correct. When the patrolmen reached the intersection and stopped because the traffic light was against them I am satisfied that the police officers were but a short distance behind them and that they were seen to be so by at least Mr. McCulloch and Mr. Walker who turned round to face them. I do not consider that action surprising in view of the rhetorical question which had been earlier posed by one of the police officers and to which I have referred above, I am also satisfied that the police officers thereafter took the initiative in the ensuing conversation, I reject the evidence that the initiative was taken by the patrolmen. In particular, £ reject the evidence that they called upon the two police officers for an explanation of their presence in Wickham Street at that particular time. It is inherently improbable that men who lived, as the patrolmen did, in the near. vicinity and who were aware of the existence of Tony's Night Club should demand of men who had obviously just come from that night club an explanation of their presence in the street, It is, of course, quite possible that during the course of the subsequent lengthy conversation between the police officers and the patrolmen a question was put by one or other of the patrolmen to the police officers regarding the reason for their presence in Fortitude Valley. Mr Li is Chinese and his command of English at the relevant time was comparatively poor. Mr. McCulloch and Mr. Walker gave evidence that one of the police officers whom they identified as Constable McQueen said when they caught up with the patrolmen at the intersection, "And who are you guys?" Mr. McCulloch and Mr. Walker said who they were and that they were working for Malcolm Sue's Security. The subsequent conversation in which all five engaged at one time or another lasted perhaps as much as 30-40 minutes and I cannot be certain that the derogatory words of which complaint is made were said immediately after the conversation opened. However, I am satisfied that very shortly after he learnt of the identity of the employer of the three patrolmen Constable McQueen said, "Malcolm Sue is a cunt", All three patrolmen deposed to the fact that that expression was used, Messrs. McCulloch and Walker identified the speaker as Constable McQueen although Mr. Li did not and I am satisfied that Constable McCowan spoke little throughout the conversation which took place. I am also satisfied that subsequently: Constable McQueen reiterated his statement about Mr. Sue. Subsequently he advanced the opinion that Mr. Sue was "a crook". I am satisfied that he made reference to the fact that Mr. Sue had been the object of surveillance at the Brisbane Airport and was generally a person in whom the Australian Federal Police took an interest. I am also satisfied that quite early during the course of the conversation Constables McQueen and "McCowan identified themselves as Australian Federal Police Officers, giving their names and the address of their headquarters and flashing at least one badge. This came about after Constable McQueen had stated that he would get Mr. Sue eventually. Subsequently Constable McQueen asked Mr. Li what was the Chinese word for "cunt", Mr. Li gave him the Chinese word and I am satisfied that thereafter Constable McQueen said to him, using the Chinese expression for the word, "You are a cunt". In his statement made within 24 hours of the incident Mr. Walker stated that Constable McQueen had, following his statement that Malcolm Sue was a cunt, asked Constable McCowan if this was so and that Constable McCowan had replied, "Yes, Malcolm Sue's a cunt". In a statement made about the same 'time Mr. McCulloch said that Constable McQueen had asked Constable. McCowan if the statement concerning Mr. Sue was true and that Constable McCowan had "nodded his head and agreed". Mr. Li's version of the incident given in his statement made about the same time was, "Then they asked us whether we know about Malcolm Sue being a cunt. Then the two men laughed. Then they asked again whether we know Malcolm Sue is a cunt." Giving evidence Mr. McCulloch was asked a number of questions and gave a number of answers on the subject. Some of them were as follows:- "Did the other man [Constable McCowan] say anything about that time? --- He was agreeing. How did he signify that, that he was agreeing? ~-- He did not speak very much, he was just nodding and saying, yeah, that is as far as I can remember. In regard to this statement that Malcolm Sue waS a cunt by McQueen, can you recall specifically whether or not the other man said anything in relation to that or at that time? --- I am quite positive he agreed, he said, 'Yeah he is a cunt', Later he was asked, concerning another incident, "Did the other man [Constable McCowan] say anything about that? --- He was just agreeing he did not say much at all. He was just agreeing." Cross-examined, Mr. McCulloch was adamant that Constable McCowan had agreed with Constable McQueen in the terms just set out. He said, "It is something that has occurred to me since. I am not sure I wrote it in my statement, but I can recall it now." Mr. Walker's evidence in chief on this subject was as follows:- "... once we identified ourselves as working for Malcolm Sue, Mr. McQueen started saying he was an arse hole and a cunt and whatnot." He was then asked, "When he said things like that, did Mr. McCowan do anything or say anything?" He replied, "He did not actually, to the best of my recollection. I cannot remember him calling him names, but he did agree." Asked how the agreement was demonstrated, he said, "Yes. Most of the agreement was Mr. McCowan. Mr. McQueen would say something and turn to Mr. McCowan, 'Is that not right?' and Mr. McCowan 'Yes, yes, that is right, yes'." Later he said, admittedly referring to a later part of the conversation, "Well, he was there but he was more to the side. If anything, my personal opinion was that Mr. McQueen was the main aggravator. I think Mr. McCowan, if anything, wanted to get away. He was, if anything, 'What are we doing; this is not anything to do with us'. Later again he said, "Well, it seemed to me as if Mr. McQueen was the one who had had more to drink. Mr. McCowan was a bit more sensible about the whole thing. He seemed - the approach from Mr. McQueen, as T said, waS one of aggravation, as if he had a vendetta against Mr. Sue, and because we worked for him he was trying to take something out on us, but as I said, Mr. McCowan was more sensible about Tt. I do not know if he is of a quiet character but he did not have much to say. He was standing more to the side, and I think he might have been leaning on a pole, or was close to the pole, and just was not as involved in trying to put us down and whatnot. At first, it was as if Mr. McQueen -10- was trying to aggravate us into starting a fight with him but Mr. McCowan did not - you know, as if he was disinterested, or something like that." Eventually the initial tension slackened and a comparatively cordial relationship developed. Mr. Li gave evidence concerning Constable McCowan. He said of him, "That gentlemen not very talk too much, just he standing to listen and some talk, not much, but all the time that gentleman {indicating Constable McQueen] talk." In these circumstances, although there is clearly a prima facie case that Constable McCowan agreed at least with the principal remark complained of as having been made about Mr. Sve, I cannot be satisfied on the necessary balance of probabilities, having regard to the gravity of the offence charged, that Constable McCowan was involved as one who was indirectly knowingly concerned in the commission of any disciplinary offence which Constable McQueen May have been guilty of by virtue of the two sets of words complained of. Constable McCowan's conduct is susceptible of an explanation that he was embarrassed by the whole business and it is entirely possible having regard to the lengthy conversation and the discrepancies between the statements and evidence of the three patrolmen. that they gained honestly an impression that Constable McCowan was more heavily involved in the actions of Constable McQueen than he was. Where the patrolmen gained the impression that certain things were as they thought them to be, as, for example, that it was being alleged that Mr. Sue was engaged in the @rug -11- traffic, they gave the bases for their impressions but I am not satisfied that their impressions were correct. In any event matters of impression are poor bases for a conviction of a disciplinary offence, Bearing in mind the appropriate onus of proof which the Commissioner bears, I am not satisfied, despite the existence of a prima facie case, that the charge against Constable McCowan has been made out. I apply the doctrine enunciated in May _v. O'Sullivan, (1955) 92 C.L.R. 654 at p.656-7. There the High Court said, "The question which is actually raised is whether, when the prosecution is made out what is called a 'prima facie case' or a "case to answer', the burden of proof shifts from the shoulders of the accused person or defendant, with the consequence that, if he fails to displace that prima facie case by Genial or explanation, he ought to. be convicted, It is, of course, clear that there is no such shifting of the burden in such a case. The burden of proving guilt beyond reasonable doubt rests on the prosecution from first to last, and, even though the defendant remains silent after a ' prima facie case has been launched against him, it may very well be that he ought to be acquitted." Taking into account the different onus of proof with which I am concerned, I think that that passage, mutatis mutandis, is entirely applicable to the circumstances I am considering. Accordingly, I dismiss the charge against Constable McCowan. The charge against Constable McQueen is in different case. For one thing, I accept the evidence of the patrolmen that he used the words complained of. For -f2— another, the record of his interview with Inspector Adams shows, I think clearly, that he exhibited a prejudice against Mr. Malcolm Sue and, in dive? avian, against his security company which on his own admission he described as a "cowboy organization". The words he admits to using in respect of that organization and in respect of Mr. Sue were, I think, inappropriate. I am also satisfied that only from statements which he made would it have been possible for the patrolmen to know that Mr. Sue had been an object of interest to the Australian Federal Wellice. The coincidence that two police officers dressed in mufti and leaving a night club at about 12.30 in the morning should run into a group of patrolmen who knew that those police officers whom they had not earlier met had an interest in their employer's activities is too improbable to give any pause. I am further satisfied that Constable McQueen addressed Mr. Li in the way alleged. It accords entirely with his attitude and what he concedes to have been the use of an offensive word to describe Mr. Li. The word was "slope" which he used in respect of people of Vietnamese origin. I am also satisfied that he was rather more affected by liquor than he conceded. There remains the question whether the conduct complained of amounted to the disciplinary offence of conducting himself in an improper manner otherwise than in his official capacity. A subsidiary question is whether the Commissioner has to establish that the words were "lewd and derogatory". -1{3- The word "cunt" now appears in the 7th ed. (1982) of the Concise Oxford Dictionary, the Macquarie Dictionary (1981) and the 3rd ed. (1972) of the Shorter Oxford English Dictionary as reset and printed in 1978. In the Macquarie Dictionary one of the meanings ascribed is "(derog[atory] ) any person". In the Concise Oxford Dictionary a similar meaning "derog[atory] unpleasant or stupid person" is given. The definitions accord with what one knows to be normal, if vulgar, usage. The words complained of were, therefore, undoubtedly derogatory. It is, in my opinion, unnecessary to decide whether they may be described as "lewd". I venture the opinion, however, that the word "cunt" continues to be regarded as indecent when used of a person and is not used by reasonable persons in the community having due regard for the feelings of others. I am satisfied that to use such a word to an employee of an employer is to behave in an improper manner; a fortiori, when the word is used directly to a person in his presence in circumstances where it cannot be thought that he might have accepted it as a joke. Accordingly I find the offence charged against Constable McQueen proved. In reaching this conclusion, I have not ignored the fact that there are similarities of expression in the statements made by Mr. McCulloch and Mr. Walker. However, having considered those similarities carefully, I come to the conclusion that it would be surprising if similar words were not used concerning the same incident and I note the -14- actual differences between the allegedly similar phrases which lead me to conclude that the statements were each the product of the man who made them without assistance from the other, thig aad the Durtitr es are a trve cony of the easons for pM sells herein of his Honou Kelky : *. NWennan Associate