IN THE [Agu] AFPDT 6 FEDERAL POLICE ) No. 7 of 1984 DISCIPLINARY TRIBUNAL ) MR B.R. THE COMMISSIONER OF POLICE against CONSTABLE MARK ANDREW STRAHLE FINDINGS MAGUIRE Q.C., MEMBER \G vEcEMBER 1984 CANBERRA, A.C.T. THE TRIBUNAL FINDS THAT:-— lhe Constable Mark Andrew Strahle is not guilty of the breach of discipline alleged in Charge No. AFP:36/8384, namely:- That he, being a member of the Australian Federal Police, was guilty of a disciplinary offence specified in paragraph 18(109a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely paragraph 7, in that on 7 December 1983 at Canberra in the Australian Capital Territory, during a record of conversation conducted by Acting Senior Sergeant Alan Robert PATERSON, a member of the Australian Federal Police, he having been asked by the said Alan Robert PATERSON the question: "Would you tell me what took place at "HILLIERS' with regard to the ammunition from your service revolver?" - answered: "i had six rounds of ammunition in the left hand front pocket of my jeans which I removed and gave to Dennis CONDON..." thereby knowingly making in . the course of his duty an oral statement that was false. 2 Constable Mark Andrew Strahle is not guilty of the breach of discipline alleged in Charge No. AFP:8384, namely:- That he, being a member of the Australian Federal Police, was guilty of a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely sub-paragraph 5(a), in that on or about 2 June 1983 at St. Kilda in the State of Victoria he disobeyed a lawful written instruction, to wit, the provisions of sub-section 13(2) of Administrative Circular No. 170, issued by the Commissioner of Police on 17 February 1983 and in force at that time, in that he failed to ensure that his issued service firearm was kept in a secure place when not being carried on duty. AND THE TRIBUNAL ORDERS THAT:-— Tx The Commonwealth of Australia pay to Constable Mark Andrew Strahle the costs of these proceedings incurred by him. IN THE FEDERAL POLICE ) No. 8 of 1984 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against CONSTABLE JOHN PEDR ANDERSEN FINDINGS MR B.R. MAGUIRE Q.C., MEMBER \q DECEMBER 1984 CANBERRA, A.C.T. THE TRIBUNAL FINDS THAT:- ts Constable John Pedr Andersen is not guilty of the breach of discipline charged in Charge No. AFP:38/8384, namely:- That he being a member of the Australian Federal Police, was guilty of a disciplinary offence specified in paragraph 18(1) (a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely sub-paragraph Say) y in that on or abour 2 June 1983 at St. Kilda in the State of Victoria he disobeyed a lawful written instruction, to wit, the provisions of sub-section 13(2) of Administrative Circular No. 170, issued by the Commissioner of Police on 17 February 1983 and in force at that time, in that he failed to ensure that his issued service firearm was kept ina secure place when not being carried on duty. AND THE TRIBUNAL ORDERS THAT:- ds The Commonwealth of Australia pay to Constable John Pedr Andersen the costs of these proceedings incurred by him. MEMBER IN THE FEDERAL POLICE ) ) Nos. 7 and 8 of 1984 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against CONSTABLE MARK ANDREW STRAHLE THE COMMISSIONER OF POLICE against CONSTABLE JOHN PEDR ANDERSEN MR B.R. MAGUIRE Q.C., MEMBER \Goecenser 1984 CANBERRA, A.C.T. REASONS FOR FINDINGS On 9 and 15 November 1984 I indicated the findings I proposed to make in these proceedings and gave oral reasons for those findings at the time. I now publish my reasons in writing in the form of the attached extracts from the transcript of proceedings. MR MAGUIRE: This charge, number 36/8384, is a subject of stren 9.1 t9g 1 em a no case submission by Mr Higgins on behalf of Constable Strahle. I must say at the outset that the whole charge stands or falls on this morning's testimony of Constable Condon of the Victoria Police. It was not really cross-examined for reasons which I believe I can understand. In my view, it is not necessary for me to get to deciding whether I believe Constable Condon or not, because I think having regard to the whole history of these events, that the commissioner has not established that there was a knowing making of a false statement by Constable Strahle. The sequence of events is that he was with Constable Condon and he either did or did not hand over some bullets. Thereafter, he was dealt with by, apparently, one or more criminals ina very severe way that included his being kicked in the head, punched in the head, pushed to the ground in such a fashion that he landed on the right side of his face, kicked in the mouth, kicked again in the head, and that he lost unconsciousness, It would seem that within - at the most, two or three hours of those events, he gave his first account of what transpired between himself and Constable Condon to Detective Acting Inspector Dau, and I think that all of his accounts made subsequently, one of which of course is the subject of the charge, have to be read in the light of this first account. Starting on page 12, about point 7: Question: You did not indicate to anybody you had possession of a firearm? Answer: I may -. and I emphasise that myself: have told the Victoria constable, Dennis Condon, the chap I was speaking to at the disco, that I had a weapon with me... - 2 + ee « « « I think I gave him six bullets out of my pocket. And so on. Now, that answer seems to me to suggest the classic vagueness of somebody who has been kicked in the head and been unconscious for some time, and it cannot be any higher than that. I am inclined to think that that dim recollection, true or false, thereafter became Constable Strahle's firm belief so that when on 7 December 1983 he was being interviewed by Acting Senior Sergeant Paterson, six months or so after the event, and he gave the 1.84 26 answer that is undoubtedly recorded, question 21 in that record of interview, and I set that out: Answer: I had six rounds of amunition in the left hand front pocket of my jeans which I removed and gave to Dennis Condon - et cetera. That he was really there only repeating something that he persuaded himself was the fact irrespective of whether it was the fact or not. In all the circumstances, he persuaded himself that that was the truth. Thereafter, when he was further interviewed and told of Constable Condon's contradiction of that matter, he gives in the interview with Acting Senior Sergeant Paterson of 21 December 1983, an account which seems to me to be - an explanation, rather, which seems to me to be entirely consistent with the state of affairs for which Mr Higgins has contended, which can be, to recapitulate, put shortly; one, there is a head injury; two, there is a scenario that he believes to be so, but he is not really certain about; and three, with the lapse of time over six months, he persuades himself that that scenario is factual. In those circumstances, there cannot be a finding that he knowingly made a false statement in the course of the answer to question 21 in the record of interview of 7 December 1983, and I hold that there is no case to answer. MR MAGUIRE: stren 15.1 t7n 2 hs Thank you. Gentlemen, I am required by section 76(5) to give reasons in writing for my Gecision and there are some further requirements I am also reauired to furnish a copy of my decision and reasons to each party. That, of course, will be done. The fact is I have come to a quite clear decision and I think it is probably desirable that I should give my reasons here and now orally and the obligation to put them into writing can be done at some convenient time after the transcript becomes available. The tribunal is hearing now only two charges, they being in similar terms, one against Constable Strahle and the other against Constable Andersen, each charge alleging that the officer concerned disobeyed a lawful written instruction, to wit paragraph 13(2) of administrative circular 170 in that he failed to ensure that: His service firearm was kept in a secure place when not being carried on duty. The charge is further particularised at page 3 of the transcript and Mr Edwards informed the tribunal that the case was that each of the officers attended a disco in a Melbourne suburb, namely St Kilda, where they consumed alcohol and they carried on their person when attending that disco their issued firearm. In order to put the events of the night of 1/2 June 1983 into proper perspective, it is necessary to examine matters going back well beyond that night. It seems that in the middle of 1983 there was mounted in Melbourne a joint federal Victoria police operation which rejoiced in the name Operation Aries. Its function was to protect on a 24 hour a day basis some, as far as I am concerned, unspecified number of potential Crown witness in, so far as I am concerned, some unspecified proceedings. The operation endured over some months and from time to time several hundred officers of the two forces were involved, although never all at once. Command of the operation was vested always in an officer of the Victoria police, initially Superintendent Lockhart and later Chief Inspector O'Laughlin. Throughout the operation the second in command of the joint operation was Senior Sergeant W.T. McQualter of the Australian Federal 1.84 : 101 otren 15. t7n 3 hs Police who gave evidence in these proceedings. There was apparently a fairly frequent turn over of personnel below Sergeant McQualter's rank. Of the two members charged here before me Constable Strahle had been engaged in the operation for some time and Constable Andersen only for a day or so. The operation was apparently broken up into squads each of which was commanded by a supervising sergeant and I think the evidence shows that at the relevant time each of the supervising sergeants was a member of the Victoria Police and none of them was a member of the Australian Federal Police. That is perhaps an important element in the background of this case. The Australian Federal Police discipline regulations makes some provision about the use and abuse of firearms. In addition to those provisions adminsitrative circular number 170 published in the Gazette of 17 March. 1983 makes further provision about the care of firearms and a number of other aspects of the use and abuse of firearms. In addition to that it seems that specifically for the purposes of Operation Aries Sergeant McQualter committed to writing some further directions as to what should be done by members of his force as to what should be done my members of his force engaged in Operation Aries while they were on duty and off duty in Melbourne. That provision is not before me in writing. It was tendered, objected to and rejected but it now seems to me that it is probably admissible if tendered by or on behalf of the two members charged and Mr Higgins has suggested that in the absence of this document at this moment the hearing can proceed on the basis that I am seized of the contents of the document which apparently provided that AFP officers coming off duty should take their firearms back to the motel where they all appear to be have been billeted and leave the firearm in each case in the custody of the manageress of. the motel who would lodge it in the safe at the motel. 11.84 : 102 The regime instituted by Sergeant McQualter seems to have been brought about because of some experience that his men had had of their weapons being left at premises occupied by the Victoria Police and being issued out to members of the Victoria Police. That concerned both Sergeant McQualter and his AFP members. I make no concluded judgment about the wisdom of lodging weapons in a motel safe but if that was a desirable system the best that can be said about it here is that it was never really put into effect. Constable Strahle had never heard of it. Constable Andersen appears to have picked it up as being something of a good idea propounded by his brother constables. He was in the habit in the day or two that he was in Melbourne before these events took place of lodging his weapon with the motel, but he did not know that in doing that he was complying with a precise written directive promulgated by Senior Sergeant McQualter and which should have been transmitted to him by his supervising Victoria Police sergeant. On the night in question the evidence suggests that Constable Strahle had worked a somewhat longer than normal eight hour shift and that Constable Andersen had worked a double shift, he having volunteered to do the extra shift in place of someone else who had fallen ill and this being his first day on duty in Melbourne as part of operation areas. The effect of their rostering was such that they both worked on a shift that was meant to conclude at 11 pm on the ist and in fact both of them came off duty shortly after 11 pm and at about the same time. Although they had worked on that same shift for the previous eight hours they appear not to have been even aware of each other during that period. The inference that suggests itself is that they were each guarding a different witness. Constable Strahle was about to embark on four days home leave in Canberra and had formed the intention of driving there in his private motor vehicle, leaving Melbourne some time early on the morning of 2 June. His evidence and earlier accounts given to investigating police about his intentions - his precise intentions in relation to his proposed departure from Melbourne are a little clouded, but I think that can perhaps be best explained by reference to the fact that before he gave that first explanation he had been the subject of what must have been quite a considerable hiding and he came to b2 interviewal at a point where he had above and beyond that been without sleep for a period in excess of 32 hours - in excess of 30 hours. stren 15.11.84 : 103 MR MAGUIRE t8n 1 dmm Having come off duty Constable Strahle kept his weapon in its holster on his person under a bulky jumper in circumstances where he says that the presence of the weapon would not be apparent to the casual visual observer. His motivation for doing that really stems from a number of factors. One, he had been unhappy earlier that his weapon when left at the office had been issued out to other police - Victoria Police. Two, it was his intention to bring the weapon to Canberra for the purpose of having it modified so as to make it more accurate. I think I can infer from all of the evidence that he entertained some doubt about whether the weapon would be available to him to bring to Canberra if he had left it for a period of time in the office after he had knocked off shift at about 11 pm on the 1st. I pause simply to remind myself that he had not ever heard of Sergeant McQualter's written instruction about the motel. Constable Andersen was in a different position. He was aware of the McQualter system, although he did not know it as such, he merely thought it was a system devised and carried out by the men themselves as one way of complying with the legal obligation to keep the firearm in a secure place when not being carried on duty. His intention was to return to the motel and lodge his weapon there. He had, of course, left the motel very early that morning intending and expecting to work an eight hour shift and be back early afternoon. With that in mind he had left his key at the - left the key to his motel room at the motel office. The two men met by chance as they came off duty and being acquainted with each other and not having seen each other for some time and no doubt because they were now working on this same operation in Melbourne they decided to have a quick drink together. That intention was carried out but not before they both went to the motel where according to Constable Andersen, and I accept him, he would have handed in his weapon to the person in charge of the office at the motel for security had any such person been there, but there was no such person there. The evidence is silent as to whether that ambition, if carried out, might have - or might not have prompted Constable Strahle to do the same. He simply was not asked about that. At all events Constable Andersen having failed to hand in his weapon at the motel the two men left in the private vehicle of Constable Strahle which was already packed with his belongings against his impending departure for Canberra and they went to licensed premises where they had one drink each, stren 15.11.84 . 104-105 MR MAGUIRE t8n 2 dmm stren t9n 1 dp 15. As I read the particulars of the charges agains each of them, read on to the transcript by Mr = on 9 November, it is not any part of the charge broucht against either of them that they left their respective weapons in the glovebox of Constable Strahle's vehicle in the vicinity of those licensed premises while they went briefly into those premises for one drink. Those are undoubtedly the facts and I think it is significant to note that the decision made by each man to leave his weapon during that brief interlude in the licensed premises in the glovebox of Constable Strahle's vehicle was a conscious decision made by him in the interests of securing his weapon. I think in each case it shows a consciousness of the officer of the need to secure the weapon. rs e wards As I said a moment ago, those facts do not bear on this charge. This charge is limited to their visit to other licensed premises shortly after. They having had that one drink, one of them at least expressed an interest in having a meal and they determined to go to a particular disco which appears to have been known to Constable Strahle who had been in Melbourne for some weexs at least in the course of his duties. As I recollect the evidence, he had been to that disco before and had been there in company with members of the Victoria police who were or had been engaged with him in operation Aries. I think it could fairly be inferred that he chose this disco as a place where a meal might be obtained, a place that was not as likelyto be populated by undesirable people as some other premises that he knew in that general area, and as a place where he might expect to find, if not Constable Condon, certainly other members of the Victoria police force. The two officers having decided to go to that disco then, as I find, rearranged the security arrangements that they had implemented for the purpose of their visit to the first premises. It became clear to them that ifthe weapons were to be left in Strahle's vehicle for 4 considerable period of time, there was some risk that a car thief would take the vehicle and consequently the weapons. They decided that the best thing to do in all the circumstances was to retrieve the weapons from the glovebox and to restore them about the persen of the respective officers. This they did by entering the vehicle, both of them, and at a time when they were clear that they were net being odserved by strangers putting the weapons bacx about their person. That action again demonstrates to me a consciousness on the part of each of them that he was required under 13(2) to keep his firearm in a secure place. 11.84 - 106 stren 15. t9n 2 dp They both went into this second set of premises where in fact no food was available. Each of them had some more alcohol to drink and they were in the company, I think the evidence shows throughout, of Constable Condon of the Victoria police. I do not attach any significance to the fact of either of them having consumed alcohol in those premises. There is nothing on the evidence to suggest that either of them was adversely affected by any of the liquor consumed at either place that night. Indeed, the evidence shows that they left the second premises under no impulsion other than their own free will and in order to go back to the motel to sleep. There is nothing here to suggest anything in the nature of overindulgence in liquor which could of course, had it been the fact, been relevant to this question of security. They having left those premises a short time later were set upon by a gang of men unknown to them. They were able, subsequently, to identify in one case one of them, and in the other case three of them, and it is significant I think that none of those persons identified as having been the assailants of Constables Strahle and Andersen is further identified as having been a person seen by the officers in the licensed premises. The evidence does not disclose how it is that these assailants learned or suspected that by attacking these two strangers, as the constables were, they might be able to secure illegally for themselves weapons for that seems to have been the aim, and if so, it was certainly successful. Each of the constables suffered a substantial beating; each of them had his weapon stolen. Fortunately, each of them appears to have made a complete recovery and the two weapons were recovered within hours, it would seem, by the Victoria police and ultimately three arrests were made. So far as this charge is concerned, I remain totally unaffected by the fact that the weapons were in fact taken from the officers. I think that unfortunate consequence is quite irrelevant to an examination of their conduct in the light of the terms of paragraph 13(2) of administrative circular number 170. 11.84 107-108 stren 15.1 t10n 1 jmm That paragraph reads: Members shall ensure that all firearms and ammunition on issue to them are kept ina secure place when not being carried on duty. As I read that provision it cannot amount to some absolute obligation on the part of every member of the police force so to conduct himself that his firearm will be utterly secure at every moment. There must be, in the construction of that provision, some element of practicability. The charge, of course, is based partly on that provision but is formulated under regulation (5) of the Australian Federal Police Discipline Regulations. That regulation reads, in part: A member shall not (a) disobey or (b) fail to'carry out a lawful instruction or order. The commissioner here has chosen not to allege a failure to carry out 13(2) but has chosen to allege disobedience to 13(2). Reading that provision as I do as importing some element of practicability I am not satisfied that either of these constables is guilty of the disobedience alleged. I think I should make some observations about the conduct of each of them and the options of each of them at least at the moment of entry into the disco. And I think it might be helpful to a proper understanding of my decision in this case if I also say something about their intentions at earlier points of time on the night of 1, 2 June. So far as Constable Strahle is concerned I accept that he had a proper concern that his weapon if left .at the Victoria police premises in Melbourne might not be available to him when he was ready to leave for Canberra some hours hence. I think that was a justified concern on his part and a proper concern, he wanting to keep this AFP weapon out of the hands of people who were not members of the AFP and, in addition, wanting to bring it to Canberra so that it could be improved by the armourer. His decision not to leave the weapon in the office seems to me to have been entirely proper. I am not required to make any finding about his decision to leave his weapon in the glove box 1.84 ; 109 and I certainly maxe no adverse finding. I am required to maxe a finding about his decision te remove it from the glove box and put it back in its holster under his jumper before he went into the disco. It has been put here, on behalf of the commissioner, that in all the circumstances he should not have gone into the disco with the weapon under his jumper, no matter what. I reject that submission. I think that there were no practical alternative available to him. He was not in his home city where he would be expected to be familiar with a number of police establishments and most if not all of the local police force. He was in another city, it was at a very late hour, he had good reason for having the weapon with him, he chose to go into the disco for a perfectly legitimate purpose and I think it is not insignificant that he was in company with Constable Anderson who is a brother officer. The degree of security attaching to his weapon, in all those circumstances, and looked at without the undoubted advantage of hindsight seems to me to be reasonable and his conduct cannot be characterised as a disobedience of 13(2). As to Constable Anderson, he having decided to have a drink with Constable Strahle did not go straight to the first licenced premises but went to the motel with the clear intention of lodging the weapon with the staff in the safe. That intention was frustrated and the considerations that I have mentioned in relation to Constable Strahle about being a stranger in a strange town apply with even more force to Constable Anderson who had arrived in Melbourne only a day or two before. . Again, I say nothing at all and certainly nothing adverse about his decision to leave the weapon initially in the glove box of the vehicle. But his further decision to remove it from the glove box and secreteit on his person to go into the disco seems to me, in the circumstances as they then were and again without benefit of hindsight to have been a perfectly proper decision and not to amount to a disobedience of 13(2). I do not accept the submission put on behalé of the commissioner that it can never be proper for a police constable to take his firearm + off duty into licenced premises. I will add =hact there cannot be many circumstances where that is so but these circumstances certainly fall on the side of the line where I see no impropriety and in particular no disobedience as alleged in the charge against each of them. I therefore dismiss both these charges. What is the rule about costs, 'ir Higgins? stren 15.11.34 110 tl0n 2 jmm MR HIGGINS: Well, sir, it is under regulation (7) of the Complaints Australian Federal Police Regulations and provides, in essence, that where the tribunal dismisses a charge, finds a member not guilty of a breach of discipline the tribunal may order the costs of the proceedings before it incurred by the member or part of those costs, as obviously in its discretion it thinks fit, to be paid by the Commonwealth. MR MAGUIRE: , How are they to be quantified? MR HIGGINS: The way in which the last matter was done was either by agreement but Mr Cahill in one matter ordered expressly they be on the Supreme Court scale and, in the circumstances of that particular case where there was a split finding and there is findings of some proved and some not proved he made a particular order about a proportion of that scale. But it would be my submission that the appropriate order to be made would be that the costs of each of the members be borne by the Commonwealth, such costs to be taxed on the Supreme Court scale or agreed. The provision about - - - MR MAGUIRE: The tribunal may, in the absence of agreement, assess. I cannot order anybody to tax but I can assess. I certainly hope I do not ever have to. MR HIGGINS: Mr Cahill expressed a similar hope and I can tell you that fortunately his hope proved to be accurate. MR MAGUIRE: It is pretty pointless nominating a scale if - or is it? MR HIGGINS: Except that it enables the parties to go away with - - - , MR MAGUIRE: It sets the climate. What do you say, Mr Edwards? MR EDWARDS: I would be quite happy to work it out on the Supreme Court scale as a basis to reaching some agreement. MR MAGUIRE: I order the Commonwealth pay to each of Constable Strahle and Constable Anderson costs incurred by that member in relation to these proceedings and I indicate that I would have in mind that the costs ought to be quantified by reference to the current Supreme Court scale. MR HIGGINS: Perhaps it should just be made clear and I am sure it is but make it clear that in relation stren 15.11.84 , 111 tl0n 3 jmm particularly to Constable Strahle that, of course, includes the costs associated with both charges against him not merely the one that has just been now disposed of. MR MAGUIRE: Yes. Is there anything else? MR HIGGINS: No, sir, that is all. AT 4.02 PM THE MATTER WAS ADJOURNED INDEFINITELY stren 15.11.84 : 112 t10n 4 jmm