Jupemenr vo. FP £984 IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL No. 15 of 1983. THE COMMISSTONER GF THE : AUSTRALIAN FEDERAL POLICE Against JOHN RICHARD BARRETT IN THE MATTER of the Complajats (Australian Federal Police) -Act 1981. ; DECISION TRIBUNAL: Mr R.J. CAHILL, S.M. DATE: 16 March 1984 THE TRIBUNAL DECIDES THAT: Ve John Richard Barrett is guiity of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations in that he was guilty of improper conduct stherwise tnan in hic official capacity in that on 27 February, 1983, at Sydney in tne State of New South Wales, he did assault Michael Philip Pennycad. ™N . The proceedings be remitted to the Commissioner for the imposition of a penalty in respect of the said breach of discipline. tp 5S = het - a ee ay -J. CAHILL, S.M. "Member te Mranch 19¢ 4. IN THE FEDERAL' POLICE DISCIPLINARY TRIBUNAL ) ) ) No. 15 of 1983 THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Against JOHN RICHARD BARRETT TN THE MATTER of the Comnlaints '(Australian Federal Police) Act 1981. R.J. CAHILL, S.M. MEMBER Reasons for Findings By notice dated 23 June, 1983 Constabie Barrett was charged pursuant to paragraph 18(1)(d) of the Australian Federal Police Discipline Regulations that he was guilty of improper conduct otherwise than in his official capacity in that on 27 February 1983 at Sydney in the State of New South Wales he did assauit Michael Phillip Pennycad. «/2. Paragraph. 18(1)(d) of the regulations provides thas: "A member is guilty ot a disciplinary offence and is subject. to punishment in accordance with these regulations if the member is guilty of disgraceful or improper conduct either in his official capacity or otherwise". Mr Madden on behalf of the member chalienged the competence and jurisdiction of this tribunal tc hear the charge on the basis that cross-suiwonses for assauit by way ot private information were ; issued by both Constable Barrett and the complainant, Michael Pennycad, " arising out of the same incident : The history of those proceedings is adequately set out in exhibit 2 which is a statutory declaration tendered by consent trom Mr Barrett's solicitor, Mr Magee. "IT RHODERICK McGHEE of 768 Pacific Highway Gordon, Selicitor do solemnly and sincerely declare as follows: 1.1 am the solicitor for JOHN RICHARD BARRETT who is the subject of certain disciplinary proceedings initiated by the Commissioner ot the Federal Police and Numbered N15 of 1983. 2. _As a result of certain civil proceedings in assault I attended at North Sydney Court of Petty Sessions on Sth May 1983. 3. At North Sydney Court of Petty Sessions I mentioned a matter of JOHN RICHARD BARRETT -y- MICHAEL PENNYCAD and, by consent, the matter of MICHAEL PENNYCAD -v- JOHN RICHARD BARRETT. The latter matter was mentioned with the consent of Mr Pennycad's solicitor, Phillip Blake. 4. A plea of "not guilty" was entered in both matters and His Worship Mr Nash S.M. listed both matters for hearing on 19th October, 1983. --/3. 5. On 19th October 1983 I again attended at North. Sydney Court of Petty Sessions and handed up certain Terns of Settlement whereby each informant withdrew their respective information; each party was to pay their own costs and the informant/defendant Michael Pennycad withdrew his complaint to the Australian Federal Police in relation to a allegation of improper conduct on the part of tne informant/defendant John Richard Barrett." . As a preliminary issue Counsel for the member submitted that the previous proceedings above cn the basis of a "double jeopardy" precluded the Tribunal from nearing this matter. I have reached conclusions about that submission which are set out in the toliowing Paragraphs. Paragraph 18(1)(d) of the regulations does encompass conduct which, if proved, amounts to the commission of a criminal offence (in this case, assault). The allegation of a criminal offence is capable of being improper conduct within the terms of the regulation. This view is supported by the decision of Neaves J. in the Federal Court appeal from this Tribunal Allen and Hardcastle -v- The Commissioner of the Australia Federal Police delivered on 19 August 1983 (not yet reported). His Honour deals with this question in support of the conclusion I have reached at pages 4 to 6 of the judgment. "It was submitted on behalf of the applicants that the Tribunal lacked jurisdiction because the conduct alleged against them did not fall within the expression "disgraceful or improper conduct" jin paragraph 18(1)(d) of the regulations. «2/4. It was argued that the expression "disgraceful or ~ improner conduct" embraced only conduct prescribed by Division 1 (Conduct of Members) of Part II of the Australian Federal Police (Discipline) Regulations or conduct contrary to a General Order or a General Instruction issued under section 14 of the Australian Federal Police Act 1979. To accept this argument would give nc cperative force to paragraph {2} of sub-;eguiation 18(1) in view of the express provisions contained in paragraphs (a) and (b) of that sub-requlation. It wes aiso argued tnat, on the proper construction of me regulations, paragraph 18(1)(d) tives not encompass conduct which, if vruved, amounts to the commission of a criminal offence. To construe the provisions as authorising the institution of disciplinary proceedings in respect of such conduct was asserted to be contrary to principle and authority but no authority directly in point was cited. Two matters were relied upon to support this assertion. First, it was submitted that in resnect of an allegation of criminal conduct a member of the Australian Federal Police is entitled to the right cf trial in a forum that applies the criminal onus of satisfaction beyond reasonable doubt and, in the case of a serious allegation, the right of trial by jury. Secondly, it was said that the institution of proceedings for a disciplinary offence where the conduct alleged amounts to a breach of the criminal law exposes the member to double jeopardy. It was said, and I think rightly, that whatever the outcome of the proceedings for a disciplinary offence, those proceedings xe/5s would be no bar to subsequent criminal proceedings= in respect of the seme conduct. "It-fallowed, so the argument ran, that the regulations should be so construed as to remove the possibility of such double jeopardy occurring. Reliance was placed on an article "Double Jeopardy and Police Disciplinary Proceedings" by Alan C. Greaves (1983) Crim. L.R. 211. In my opinion nothing in that article supports a reading down of the general languace of paragraph 18(1)(d) of the regulations. The learned author deals with the position in England under the Police Acts 1964 and 1976, which contain provisions which have ne counter~part in the legislation relevani to these proceedings, and under a circular issued by the Home Office covering aspects of police discipline and complaints procedures. In my opinion there is no sufficient basis for construing Paragraph 18(1)(d) of the regulations as excluding from its purview conduct which, while answering the description of disgraceful or improper conduct, also aiiounts to a breach of the criminal law. When discipiinary proceedings are taken the member is not charged with a criminal offence: he is charged with a breach of discipline. The expression "disgraceful or improper conduct" is one of very wide import and conduct which amounts to a breach of the criminal law will in many cases of its very nature be conduct that would be regarded as disgraceful or improper if .-/6. engaged in by a police officer. There is nothing +0 be found exnressly in the reguistions to warrant giving the expression a limited meaning and there is, in my view, no necessary implication arising from a reading of the regulations as a whole. One may conjecture why criminal proceedings were nor instituted in respect of the conduct alleged ayainst the applicants but the fact is that no such proceedings were instituted and, so far as the evidence before the Court goes, none are contemplated. No question of double jeopardy in fact arises. All the applicants can say is that there is the mere possibility of Criminal proceedings being brought against them in respect of the conduct relied upon in the disciplinary Proceedings. The presence in sub-regulation 18(1) of the regulations of paragraph (h) to the effect that a member is guilty of a disciplinary offence and is subject to punishinent in accordance with the regulations if the member is found guilty by a court of an offence against a jaw of the Commonwealth, a State, a Territory or another country is sufficient to dispel the notion that the regulations do not contemplate the same conduct being the subject of both criminal and disciplinary proceedings. There is, I think, much to be said for the view that in a case where the Commissioner is contemplating both criminal and disciplinary proceedings in respect of the same conduct, the criminal proceedings should be heard and determined before any hearing of the disciplinary proceedings but this is not a matter that will avail the applicants in these proceedings." wow Din I, at first instance and the President of this Tribunal (Kelly d.} om appeal ré sentence have reiterated a similar vicw in Rowlands -v- The Commissioner of the Australian Federal Police (in May 1983 and in December 1983). Ti makes no difference that the aliegatiun pursuant to paragraph 18(1)(d) of the regulations involves an act otherwise than in the course cof the official copacity cf the member. I nave already previously reached that conclusion in a previous decision of Ninness -v- The Commissioner of the Australian Federal Police (- November 1982). Difficult pclicy considerations of fairness to the member invelved require detailed assessment in a decision by the relevant authorities as to whether criminal proceedings should be brought in preference to disciplinary proceedings in a particular case, especially where the gravamen of the allegation amounts to a criminal offence such aS assault. This question is also adverted to by Neaves J. in the passage quoted above in Allen and Hardcastle -v- The Commissioner of the Australian Federal Police. In such a policy consideration there would need to be regard to the lesser of standard of proof involved in disciplinary proceedings according te the law and the non-application of the rules of evidence and the relative informality introduced by section 76 of the Act. These dangers have been adverted to in the United Kingdom in a recent article: "Double Jeopardy and Police Disciplinary Proceedings" Criminal Law Review 211 - Mr Allan E. Greaves. sew Bx Mr Barrett initially laid the civil criminal private information proceedings against Mr Pennycad whe then laid a cross- summons of the same type. If double jeopardy were to apply, a situation may well be reached where the commencement of civil private information for assault were to be a bar to disciplinary proceedings when the proceedings were witndrawn withcut penalty and no discipiinar; proceedings follow against the member. I do not suggest this was the motivation of tno member here. The normal rules of double jeopardy, res judicata, issue estoppel, autrefois, convict or acquit, -as bétween the criminal uffence of assault and disciplinary proceedings of this type for . improper conduct where the allegation involves assauit do not apply. The Legislation provides that a person who 43 found guilty of a criminal offence can be dealt with for an additional disciplinary offence. There are different parties in the respective proceedings. The content and purpose of the action are different. The rules of evidence are not applicable. The material available upon which a decision is made may vastiy vary. Fven if the rule against double jeonardy did apply to disciplinary proceedings on the facts and circumstances of this hearing, it can not he said to have actually arisen in this case. Constable Barrett has never been in jeopardy or peril of conviction in legal proceedings. A joinder of issues and some degree of trial or verdict upon the issues is required before the rule against double jeopardy would operate here - See Broome -v- Chenoweth (1946) 73 CLR 583 at 600; Howard -v- Pacholli (1973) VR 833; Barnes -v- Gougouris (1969) VR 1019; Ward -v- Hodgkins (1957)' VR 715; Wallace -v- Lawson (1968) 88 WN part I NSW 505. Nash, Magistrates Courts in Victoria, 2nd edition, vol 1, pages 314-317 in paragraphs 900 to 904. --/9. The allegation here of assault, which is the gravamen of the allegation of improper conduct, if proved, is canmabie as a matter of law of amounting to improper conduct within the regulations. I reject the preliminary objection on behalf of the member en these grounds. ! am satisfied that the Tribunal is both competent and has jurisdiction to determine the charge. The onus of proof in these proceedings lies upon "the Commissioner of Police and further. that the standard of proof required for the Commissioner to succeed is the standard of proof as outlined by Fox J. in the decision of Scanes -v- ihe Commissiuner of the Australian Capital Territory Police, 3 ACTR 20, particularly at pages 26 and 27. Fox J. indicated that the standard of proot in such discipiinary Proceedings as these was on the balance of probabilities but with special reservation. Fox J. adopted the position as expressed vy the following passage from the judgment of Dixon J., in Briginshaw -v- Briginshaw (1938) 60 CLR 336 at 361, 362: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal; but reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of fact or facts to be proved. The seriousness of the allegation made and the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal". sco Ol. 10. Turning to the facts, it is undisputed that the incident arose gut of < traffic incident in the Sydney suburb of West Ryde. No actual collision was involved. Mr Pennycad was driving a vehicle with Mr Joseph Sleiman in the front passenger seat and Mr John Sleiman in the rear passenger seat in Ryedale Road near the Ryde Eastwood Leagues Club. Mr Barrett (with his presert wite. then his fiancee, in the front passenger seat) was leaving the car park of the Club having been unsuccesstu! in finding a car Dark in the off-street parking area. Mr Pennycad obviously feared a collision, braked hard and skidded violently. Mr Barrett was able to come to a stop, there was no actual contact between the vehicles. Following the vehicles coming to a stop Mr Pennycac claimed, tnat as a result sf the skidding motion, he rolled without intention into Mr Barrett's path and biocked his way. Mr Barrett indicated that, in his opinion, because of the slope of the roadway, in fact Mr Pennycad had deliberately driven his vehicle in a position so he blocked Mr Barrett from going in a forward direction from the accident scene. The issue goes to a matter of credit. On balance one would accept Mr Barrett's version in the light of his evidence that the slope of the roadway was against the direction in which Mr Pennycad's vehicle moved. With both drivers still in their vehicles, then followed - a tirade of obscene verbal abuse against Mr Barrett. Mr Pennycad concedes the use of foul language in respect of Mr Barrett's driving, but indicated that Mr Barrett was not the personal subject of his abuse but rather the nature of his driving - Mr Joseph Sleiman leant across from the front passenger seat and joined in this verbal abuse. Mr Pennycad and Mr Sleiman concede that initially at least, Mr Barrett was not involved in any verbal or obscene abuse. Mr Barrett claims he was never involved in obscene or verbal abuse and he is supported by his wife in that respect. How the drivers came to leave their cars is also in dispute. Mr Barrett denies that he asked Mr Pennycad to leave the car. Mr Pennycad and Mr Sleiman claim that it was Mr Barrett visio Ue 1. that requested them to leave the car. There is a further conflict in the sequence of events between Mr Barrett on the on hanc and almost all of the other witnesses on the other hand. Mrs Barrett in this connection I find to be uncertain of the exact sequence of events although she vacillated I find that her view of the surrounding circumstances of the striking of a blow by her husband was Obscurred. Both drivers left their vehicles. Mr Barrett clatias tiat the abuse continued atier Pennycad left his vehicle. He indicated that in a matter of seconds, Pennycad aggressively movea towards fin. He had an agressive look about him with his fists clenched at his side. Mr Barrett claims, in fear for his life and safety; in all of those circumstances and for the safety of his wife, he struck a blow in self defence at Mr Pennycad striking him in the area of the face. Mr Barrett describes the blow as a "warding off" blow. Mr Barrett presented to me as a convincing witness, but has some difficulty exniaining the logic and specific sequence of what occurred. He indicated that after the blow was struck he produced his police badge from his shirt pocket (where he always kept it) and in this matter he is supported by his wife on evidence. He advised that he was a member of the Australian Federal Police at this time. He then returned towards the car to enquire about his wife's well being. He returned to where Pennycad was. Then followed an incident where Joseph Sleiman who had just left the vehicle challenged Mr Barrett to fight him. He says all 3 boys were around him yelling abuse at him. The abuse continued until he went to his vehicle, drove around Mr Pennycad's vehicle and left the scene. «el les 12: I find logic does not support Mr Barrett in his particular version. After he struck a blow in self defence why did he remain showing his police badge, continuing the discussion? As to the detail of what he said occurred after he struck the blow, he appeared confused and not able to provide detail of action or conversation. His version receives limited support from his wife (who then was his fiancee). She claimed Mr Barrett never used agaressive or foul language in her presence. However on an important issue, Mrs Barrett does not support him. It is vital to his claim of self- defence that the approach by Pennycad was aggressive and within seconds of leaving the vehicle. The blow was struck in an unexpected flurry of self defence ac it were. Mrs Barrett estimates that from the time Mr Barrett ieft the vehicle until the time the blow was siruck, a fair time elapsed (a number of minutes). During that period there was a conversation whilst the two were at arm's length. That part of Mrs Barrett's evidence does not support her husband's claim as to the circumstances in which he struck the blow in self-defence. The version of events by Mr Pennycad and Mr Sleiman (set out below) is to some extent supported by an independent witness, a Mr Manfred Gusel who did not give evidence before the Tribunal as he could not be located. Mr Gusel's brief statutory declaration tendered by the Commissioner, supports the sequence of events sworn to by Mr Pennycad and Mr Sleiman. It states as follows: "I was on my way home, walking past R.S.L. Club West Ryde, when I heard tyres squealing, and saw a car coming down Rydale Road making an emergency stop, to avoid a collision with a car emerging from the R.S.L. car park, the car coming down Rydale road managed to stop in time. I heard voices coming from both vehicles, and saw both drivers emerging from the «s/13. 13. cars, they started arguing, the older man stept = back to his car, took his glasses off came forward again, and suddenly without warning punched the younger man in the face, the other man jumped out from the car to protect the younger driver, but a fight did not break out, the older man returnt to his car and drove away". As Mr Gusel was not called the weight of his evidence must suffer. 'nder section 76 oF the Act I take regard of such evideine with the obvious short-comings caused by his non appearance and the absence of cross-examination. It is important that Mr Gusel appears to have volunteered himself as a witness on behalf of Mr Pennycad and there is sothing tu suggest that he was anything but independeiit in the matter. i have disregarded largely Mr John Sleiman as I believe his evidence was vague and unreliable. His view in the back seat for most of the incident was not a good view. Equally, the view of Mrs Barrett at the vital time, was obscured because she indicated her husband's back was to her. The Pennycad/Sleiman version of events, is that an argument occurred outside the cars for sume pericd between Pennycad and Barrett. Mr Barrett was counter-abusive (I am not satisfied that he was abusive to any great extent). At all times prior to the blow both vrs Barrett and the Sleiman brothers were both in the motor vehicles. Mr Barrett went to the car, removed his sunglasses and shortly after that, an Australian Federal Police badge was produced by Mr Barrett and conversation along the lines of "if you wish to call the police I am the police". Abuse and argument also continued. Mr Pennycad, who seemed disgusted by his inability to convince Mr Barrett of his adverse driving performance, half turned away and then was suddenly hit by the punch by Mr Barrett. There remains the possibility that Pennycad and Joseph Sleiman contrived this version of events. They were consistent and unshaken on »./14, 14. this part of their evidence. They were interviewed separately by Inspector Mullaly and their records of interview are consistent on those matters. Both say it was an unexpected punch, and that Mr Pennycad was half turned, obviously not expecting it. Certainly not as Mr Barrett suggested in the act of agression of about to throw a Dunch,. Jescph Steiman then got out cf the car. abuse continued an on the Pennycad version of events, the challenge to fight between Mr Barrett and Mr Sleiman followed. No actual blows were struck. Mr Barrett then left the scene. Not even Mr Barrett has suggested, thai Mr Pennycad was ever in a Fighting stance. At most, tir Barrett has indicated that Mr Pennycad had his hands clenched beside his side. Certainly on the Pennycad/Sleiman version of events the blow was unexpected and that is supported by Mr Gusel. Mir Pennycad's conduct after the event *s significant in the assessment of his credibility. Mr Pennycad immediately reported the matter to the New South Wales Police. He continued with his comolaint ic Constable Shannon of the Australian Federal Police and eventually was interviewed in detail by Inspector Mullaly. One would wonder if Mr Pennycad was actually the aggressor in the sense of beig about te physically attack Mr Barrett, that he would have persisted in this line of action. A day or so later he sought medical treatment and the medicai examination detected a slight injury to his jaw which corroborated the fact that a blow struck him quite firmly in the face. Mr Barrett described the blow a "warding off" only. «+ /15. The central issue on the facts in this case is whether Mr Barrett acted in self-defence. I am satisfied the issue of seif- defence is properly raised before the Tribunal and in accord with the normal principles applicable the onus is to be borne by the Commissioner to rebut the suggestion that Mr Barrett acted in self-defence at the relevani time in reiation to this blow. That onus must be borne on the standard referred to in Scanes -v- Wilson 'above). Self-defence has been authoritatively dealt with by the High Court: in the decision of Viro -v- Tne Queen (1978) 141 CLR nage 88, "in particular by Mason J. at pages 146 to 147. Those principles as they apply to cases other than homicide has veen adequately and fully deaic with by the Full Federal Court of Australia in Helmout -v- The Queen 1 Australian Criminal Reports at page 464 as follows: "The principles to be applied may be stated thus: (i)(a) It is for the jury first to consider whether when the accused applied force to the person of another the accused reasonably beli¢vec that an unlawful attack was being, or was about to be, made on him. (b) By the expression "reascnabity helieved" is meant. not wnat a reasonable man wouid have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself. (ii) If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self defence arises. (iii) If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger wiich he believed he faced. (iv) If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit. Therefore, if it is found that the force used by an accused was disproportionate to the danger which he actually faced this does not, in itself, dispose of the defence of self-defence if the accused might have believed that he faced a graver danger than he actually did." 16. There is need to apply the above in the context of=this Tribunal. The Tribunal considers whether Mr Barrett, when he spe lied force to the person of another, namely Mr Pennycad, reasonably believed that an attack was being or was about to be made upon him. The test of whether Mr Barrett's belief was reasonable is whether he himself might nave reasonably believed in all of the circumstances in which he fuund himself that unlawful assault was being or was about to be made upon nim. Tf the Commissioner rebuts the existence of any suci Delier it Mr Barrett no question of self-defence arises. If the Tribunal does not exclude' in accordance with Suanes -V- Wilson that Mr Barrett 41d not reasonably believe that an uniawful attack was being or about te be made on him the question of proportionality of force used by iim will arise for consideration. 1 do not believe this is an issue here because if, in fact, an attack was about to be made, a punch such as that delivered would not appear out of proportion. Finally, if the Tribunal is not satisfied as to the precise belief of Mr Barrett as to the danger he faced, the relevant question is whether the force actually used was proportionate to the gravest danger and which the Tribunal is satisfied that Mr Sarrett might have believed he was placed. Under the normal common law principles which apply here provocation would not afford a defence to Mr Barrett in this situation - See Helmout -v- The Queen (above). The essential question here is whether Mr Barrett reasonably believed at the time he struck the blow that an attack was being or was about to be made upon him. On the evidence the Commissioner bearing the relevant onus must rebut that belief. eon Vic 17. I am satisfied on the relevant onus and standard of proof thet the Pennycad/Sleiman version of events as to the circumstances in which Mr Barrett struck Mr Pennycad is proved: Mr Pennycad, Joseph Sleiman and Mr Gusel all support that version above Mr Barrett's version. Mrs Barrett herself contradicts the statement of Mr Barrett that Mr Pennycad left his vehicle and immediately advanced towards him and within seconds, without delay he had struck him. ; On the basis of the principles set out in The Queen -v- Helmout (above) Mr Barrett was premature in striking the blow. There was certainly a lengthy and obscene tirade of abuse but no suggestion of actual or threatened violence. At the time the bicw was struck Mr Pennycad had half turned away. The blow was sudden aiid certainiy there was no evidence of Mr Pennycad about to land a diow or abort to involve nimself in physical violence. The argument had been purely verbal albeit. He acted and Mr Barrett was subjected to verbal provocation. The application ot principles of self-defence to these facts is difficult but in the circumstances I am satisfied that applying the tests I have mentioned the Commissioner has excluded that Mr Barrett, at the time he struck the blow, was acting in legitimate self-defence in the terms of the authorities. With the exclusion of self-defence, the blow clearly amounts to an assault. I find that such an assault has occurred. The legislation coes not empower me to impose penalty. If I did have such power there are a number of matters that as the fact finding tribunal I consider should be said in mitigation of penalty. For the assistance of the Commissioner, who is the one responsible for imposing the penalty in this case, I comment on this issue. os/18. 18. One can have great sympathy for Mr Barrett because.'there is no doubt that botn Mr Pennycad and Joseph Sie iman were 'verbally abusive and obscene in public to Mr Barrett. One could be satisfied that Mr Barrett would have regard for his fiancee (now his wife) in relation to the use of such language. He was subjected to extreme provocation and it is unforturate that provocation does not afford a defence. I am satisfied that Mr Barrett, himself, was not anywhere near as broadly aggressive as the other two parties involved. It is indeed unfortunate that he did not avail himself earlier of the opportunity te drive away from the incident. The fact that Mr Pennycad no longer pursues the iiatter in the civil courts is an indication of his true present attitude. One cai have nothing but sympathy for Mr Barrett in this situation. I make these comments in the hope that they would be borne in mind in the assessment of penaity. During the hearing the issue of counselling Mr Barrett re the incident arose incidentally in the cross-examination of Mr Barrett. Mr Barrett indicated that at some stage prior to this hearing being commenced that there had been an offer conveyed to him through his solicitor that if ne would accept counselling in respect to the matter and pay the legal costs of Mr Pennycad incurred in relation to the private action all matters would be withdrawn. A detailed explanation has been very properly provided on behalf of the Commissioner by Mr Chapple as to the detail of what occurred and in particular the involvement of Mr Preston from the Ombudsman's Office. It is now clear the proposal originated from a suggestion by the Solicitors for Mr Pennycad. «of 19% 19. I am satisfied that once a charge is brought before: the Tribunal it must be resclved before the Tribunal even if the Commissioner offers no evidence. The legislation contemplates conciliation as a proper way of dealing with some complaints. It is important to consider the alice considerations that relate to when counselling should be offered as a means of solution. It is not Tur me tc tay down that policy. However this case demonstrates a number of important considerations. Tne acceptance by a member of counselling would be tantamount to an admission of nis guilt. Fiirther, the acceptance of counseiting may result in an adverse entry on the member's record. The situation is fraught with danger if such independent conaitions as were involved in this case are attached to an offer to resolve the case by counselling. Where a complaint is made against a police officer the question of public interest arises. Some of the issues that have incidentally arisen in this hearing lead me to the view thai consideration may appropriately be given to the creation of an independent screening body to monitor all compiainis against members of the australian Federal Police. Memvership of the body may weli include the Commissioner or his delegate and the Ombudsman or his delegate. The body would have a duty to record its decisions cand give reasons for any course of action it adopted. The body could review all complaints. There may be a mumber which may be frivolous or insignificant and a decision could be reached to take no action; offer counselling or direct criminal or disciplinary action. The body in some circumstances could be consulted and decide that a charge before this Tribunal, be discontinued. ware / 20, 20. Such a proposal may have the advantage of a considerable saving of vaiuable police investigative resources while stil? preserving the public interest and confidence in the Australian Federal Police. My mention of this preposal should be taken in ne way as 3 criticism of any procedure adopted in this case. Mr Chapple has diven a Full and prover explanation and I acecepi it. For the reasons I have set out above I find John Richard Barrett guilty of the disciplinary offence charged. The matter will be remitted to the Cuumissioner of the Australian Federal Police for the imposition ot penalty. ieee: whovererscreresee SOA R.d. CAHILL, S.M. Member rea Veene L Gf