JUDGMENT No. FP. 8/98. OCC CPP DOLCE CES IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL ) Ne. 3 OF See THE COMMISSIONER OF POLICE against SENIOR SERGEANT BRIAN BRADLEY FINDINGS Member Mr R.J. CAHILL, S.M. The Tribunal finds that Senior Sergeant Brian Bradley is NOT GUILTY of the disciplinary offence alleged in charge No. 59/8283 namely: "That he was negligent in the discharge of his duties, in that between 10 December 1980 and 20 March 1981, at Sydney in the State of New South Wales, having undertaken to investigate an incident alleged to have occurred at the St Mary's Munitions Filling Factory on 10 December 1980, he did fail to carry out an adequate investigation of the said incident". R.d. CAHILL, S.M. Member I€ CUToBER /y¥Ry IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL) No. 9 of 1983 THE COMMISSIONER OF POLICE against SENIOR SERGEANT BRIAN BRADLEY REASONS FOR FINDING By notice dated 10 May 1983 the Commissioner of the Australian Federal Police instituted proceedings against Senior Sergeant Brian Bradley charging that pursuant to Paragraph 18(1)c of the Australian Federal Police (Discipline) Regulations that he was negligent in the discharge of his duties in that between 10 December 1980 and 20 March 1981, at Sydney in the State of New South Wales, having undertaken to investigate an incident alleged to have occurred at the St Mary's Munitions Filling Factory on 10 December 1980, he did fail to carry out an adequate investigation of the said incident. Paragraph 18(1)c provides: "A Member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations is the Member is negligent or careless in the discharge of his duties". of2s In answer to a request for particulars the Commissioner indicated (see Exhibit E2) that he was not relying upon a specific instruction given to the member to carry out the investigation but upon the fact that he had accepted the responsibility for conducting the investigation and having done so, he had a duty to conduct an adequate investigation of the incident at St Mary's on 10 December 1980. The Commissioner further particularised the inadequacies referred to in the charge as including: (i) Failure to interview all the participants in the incident of 10 December 1980. (ii) Lack of care in the compilation of his report dated 19 March 1981. (iii) Failure to check all the documents involved in the incident of 10 December 1980. (iv) Failure to report promptly. The circumstances of the incident of 10 December 1980 were not at the hearing in dispute between the parties. Before the Tribunal was amass of evidence, statements etc. from various witnesses and investigators of that incident tendered by consent. Most of this material was provided to the member and his legal reporesentatives in advance and is comprised by Exhibits Cl to C29 inclusive. A convenient short summary of the incident of 10 December 1980 is set out in part of Chief Superintendant Fletcher's report which is Exhibit H herein as follows: "Ty. On Wednesday, 10 December 1980, at 2.15 am TALBOT visited St. Marys Station as part of his supervisory duties. TALBOT has stated that as he was about to leave, Protective Service First Constable HENRY, the shift supervisor, called him aside and told him he was having trouble with Protective Service Constable GALE. HENRY said that onde GALE was going to the Rooty Hill RSL Club that night (Wednesday) and HENRY was apprehensive about GALE coming on shift at 10 pm. , He had previous trouble with GALE and requested = that TALBOT attend St. Marys Station as soon as possible after commencing shift at 10 pm that night, in order to support HENRY should there be any further trouble. 2 TALBOT commenced his next shift at 10 pm that night, 10 December 1980. He mentioned to a fellow member (Acting Sergeant J. CARTER) that he had a special job to do and departed Eastern Division Headquarters. He did not report his movement by radio, so as not to alert any station that he was on the move. He did not use a driver as he was expecting that First Constable HENRY would be a witness to any incident that might arise. 3. On arrival at St. Marys at 11.20 pm, he saw HENRY in the police office and GALE at the door of his private vehicle nearby. TALBOT reported HENRY as saying, "Constable GALE did not get here until 22.50 hours (10.50 pm). When I came on shift Protective Service Senior Constable TEBBET (the previous shift supervisor) passed a message to me that Constable GALE would be late reporting for duty tonight. He has been here for half an hour and I can't get him to go on patrol". HENRY said that GALE had signed the attendance book as having commenced at 10 pm, but that he had not been there at that time. 4, TALBOT spoke to GALE who denied being late. He said he had been on patrol and had returned to his car to collect some sandwiches. GALE admitted to TALBOT that he might have a drinking problem and TALBOT said he would arrange for GALE to be transferred to another station. 5. GALE departed on patrol and HENRY, according to TALBOT, again confirmed that GALE had not arrived until 10.50 pm. 6. The following day, Inspector J. CASEY, OIC, Protective Services, received a telephone call from GALE to the effect that GALE had not been late the previous evening. He also received a call from another person, whom he cannot remember, but believes it was to the effect that TALBOT wanted GALE transferred from St. Marys. CASEY issued instructions that all the members involved submit reports as to what time GALE reported for his shift. vals 7. In a Record of Interview taken on 21 January 1982 HENRY stated, "Bob TEBBET telephoned me at home about 2 pm and said, 'the shit had hit the fan'. = Bob GALE had been transferred and everyone has to put reports in to Inspector CASEY as to what time GALE commenced duty the previous night. I knew straight away that I would have to go along with the others". In a Record of Interview on 22 October 1981 TEBBET confirmed this telephone call and admitted that he told HENRY that he would be submitting a report that GALE had commenced duty at 10 pm the previous night. 8. At 12.35 am on Friday, 12 December 1980, TALBOT visited St. Marys again and HENRY informed him of what had happened. HENRY said that he had made out a report as suggested by TEBBET that GALE had commenced duty at 10 pm on 10 December 1980. 9. According to TALBOT, part of the conversation was: TALBOT : "Mick! You requested my assistance in this matter, made certain allegations against GALE last night knowing that I would act on your information and now you do this to me." HENRY: "What else could I do? After all I have to work and live with these blokes. You don'T. You're in town and don't see them. Anyway, you won't have to wait long, GALE will resign. I feel lousy and would resign myself only I have a family and need the money." 10. TALBOT collected the reports submitted by TEBBET, HENRY, SCHNEIDERS and GALE and departed the station. We On 12 December 1980 TALBOT submitted a report of the incident to Inspector CASEY together with the unopened envelopes containing the reports from the four constables. In his report to Inspector CASEY, TALBOT requested that the matter be referred to the Internal Investigation staff. His report also stated, "This matter involves many principles relating to discipline and the overall well being of the Australian Federal Police. They should not be sacrificed or ignored". elds Tk. On the same day, 12 December 1980, Inspector CASEY forwarded the report to the OIC, Eastern Division, Chief Superintendent W.L. ANTILL, and directed Acting Inspector H.A. SWINTON to = conduct enquiries to establish the truth of the matter. The direction was apparently oral." The parties accepted the findings of fact by the President of this Tribunal (Kelly J.) in disciplinary proceedings - Commissioner of the Australian Federal Police -v- Henry, Schneiders and Tebbet (matters 8, 9 and 10 of 1982 - Exhibit D herein). The findings substantially accord with the brief summary set out above. A detailed analysis of the factual matters involved in the incident are more fully elaborated at pages 1 to 10 inclusive of Exhibit D. The scope of the present charge relates to the investigation of the incident and specifically the role of Sergeant Bradley in that investigation in all the prevailing circumstances. Throughout the period subsequent to 10 December, 1980 Sergeant W. Talbot continued to be dissatisfied with what had occurred on 10 December, 1980 and what he perceived to be inappropriate actions by various members of the Australian Federal Police in respect of the incident and its aftermath. He continued his complaints, in particular to Chief Superintendant Antill Regional Commander of Eastern Division of the Australian Federal Police during the period in which Sergeant Bradley was involved in his investigation (i.e. March 1981). Two separate investigations were carried out in respect of Sergeant Talbot's complaints. Chief Inspector J.B. Burrows, initially called in to investigate further but unrelated disciplinary problems at the St Mary's Station, in October 1981 also extended the scope of that inquiry to cover the incidents of 10 December, 1980 and the aftermath thereof. Chief Inspector Burrows' report of this investigation is Exhibit G herein. In June, 1982 as a result of a complaint by Sergeant Talbot to the Commonwealth Ombudsman, Chief Superintendant Fletcher was appointed to conduct a special investigation pursuant to paragraph 46(1)(e) of the ../6. Complaints (Australian Federal Police) Act. Much of this investigation was outside the ambit of the charge before the Tribunal. Chief Superintendant Fletcher's report is Exhibit H herein. Counsel for Sergeant Bradley contested the admissibility of both Exhibits G and H. I ruled both documents admissible at pages 110 to 112 of the Transcript of 27 October, 1983. I will elaborate further on this matter below. I will also advance reasons for the rejection of a "no case submission" by Counsel for Sergeant Bradley. The concept of "neglect of duty" involves a consideration of the performance of Senior Sergeant Bradley in the investigation in all the attendant circumstances that applied throughout the relevant period and considering and contrasting that performance in the light of what would reasonably and properly be expected of a police officer in a position in such an investigation again in all the attendant circumstances. A significant departure in one or more respects in the proper standard of performance would in this context constitute a neglect of duty. Performance of a duty could involve a specific direction, oral or written, by a superior officer or authority, but that is not necessarily the situation. A police officer performing his everyday tasks could be said to be involved in the performance of numerous duties that would not be subject of any such direction. To interpret the relevant regulation otherwise would be far too restrictive. In Exhibit 2 in answer to a request: "Is it alleged that Senior Sergeant Bradley was instructed to investigate the incident at St Mary's on December 10, 1980?" The following particulars were provided: -/7. "The Commissioner is not relying on a specific direction given to Acting Inspector Bradley, as he then was, but on the fact that he had accepted responsibility for conducting the investigation and having done so, had a duty to conduct an adequate investigation of the incident at St Mary's on 10 December, 1980." , Counsel for the Member made a no case submission largely based on the fact that there was no evidence that his client was directed to or undertook to carry out the complete investigation, and no evidence of any instructions as to what manner or at what depth the investigation should be carried out. It was argued that negligence requires the establishment of a positive duty: voluntarily undertaking a task or function could not give rise to the requisite obligation. I rejected the no case submission. There may be a question as to the appropriatness of "no case submissions" in proceedings such as these. "Prima facie" or "no case" submissions have a proper and technical role in criminal or civil proceedings. The procedure to be followed in these proceedings is largely one of discretion for the Tribunal. There may be cases where it is completely appropriate for a legal issue to be determined at the close of the Commissioner's case but there may also be cases where the making of such a submission is completely appropriate. The situation will largely fall to be determined in individual cases. I received assistance in this connection from the decision of Morling J. in Williamson -v- Morrison 1982 40ALR 335 I am satisfied that this is a case where such a submission was justified particularly in relation to the issue of the scope of the duty prescribed by the relevant regulation. It was necessary at an early stage to determine whether or not such a duty could only arise from an oral or written direction of a superior officer or authority. «s/8s It is now fully settled that the onus of proof inJ these proceedings lies upon the Commissioner and that the relevant standard of proof is that prescribed by Fox J. in Scanes -v- Wilson 1974 3ACTR 20 at pages 26 and 27: "I should say, in fairness, that in my view the Board used too high a standard of proof when it applied the criminal standard, of proof beyond reasonable doubt. The proceedings were of course disciplinary and not criminal (see R. -v- Minister of State for the Interior (1972) 20FLR 449 at 461-2). The standard of proof in disciplinary proceedings against legal practitioners is on a balance of probabilities (Ex parte Attorney-General for Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234, and cases there cited). The Board was of the view that it was following precedent established in the States, but I have made inquiries and I find that the Crown Employees' Appeal Board in New South Wales, which deals with police appeals, among others, applies the civil standard of proof on a balance of probabilities (see, for example, Brent and Drooger -v- Commissioner of Police, Nos. 168 and 169 of 1971). The gravity of a charge is of course always a matter which influences the mind when applying that standard. In Re the Appeal of Arthur James Sharp (No 108 of 1961), Kinsella J., who was then the Chairman of the Crown Employees' Appeal Board, said: "The onus ~ of proof before this Board of the several charges against the appellant rests upon the Commissioner, and the standard of proof is to be measured by the following passage from the judgment of Dixon J., as he then was, in Briginshaw -v- Briginshaw (1938) 60 CLR 336 at 361-2; (1938) ALR 334 at 342: '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 attained or established independently of the nature and consequence of the fact or facts to be proved, The seriousness of an allegation made, the inherent unlikelihood of an occurrebce 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'." /Q At the close of the Commissioner's case written submissions were tendered by both parties in respect of the admissability of documents that have been marked MFI 1 and 2 respectively. Section 76 Sub-sections 1, 2 and 3 of the Complaints (Australian Federal Police) Act 1981 describe both the general procedure to be adopted by the Tribunal and the basis upon which evidence is received or rejected. Those provisions state as follows: "76. (1) In a proceeding before the Disciplinary Tribunal, the procedure of the Tribunal is, subject to this Part, and to the regulations, within the discretion of the Tribunal. (2) A proceeding before the Disciplinary Tribunal shall be conducted with as little formality and technicality and with as much expedition as the requirements of this Part and a proper consideration of the matter before the Tribunal permit. (3) The Disciplinary Tribunal is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks appropriate." On this issue Mr Chapple on behalf of the Commissioner submitted as follows: "RE: M.F.I,] [he document M.F.I. "1" (see transcript of the —————— 25 August 1983, page 24) is a report by Chief Superintendent Fletcher of the Australian Federal Police dated 26 August 1982. It followed a special investigation conducted by him as a result of his appointment under Section 46(1)(e of the Complaints (Australian Federal Police) Act, the Act"). e€ appointment was made following a complaint to the Commonwealth Ombudsman by a Sergeant Talbot of the Australian Federal Police. Evidence before the Tribunal in this case has already indicated that the investigation of matters involving Sergeant Talbot and reports made by him and other police officers of the St Mary's station are inextricably connected with the charge before the Tribunal in relation to Sergeant Bradley. It was from Sergeant Bradley's investigation of Sergeant Talbot's report and the matters associated .-/10. 10. with it that led to the present charge against J Sergeant Bradley. It is on the basis of relevance and bearing in mind the Tribunal's wide powers under Section 76 of the Act that the Commissioner submits that the report should be in evidence, Further, when one looks at the structure of the Act it is clear that a report such as M.F.I. "Il" is a document which comes into being following the exercise of wide powers by the special investigator under Part IV of the Act. This includes the powers of administering oaths and directing that information be furnished which are contained in Section 50 of the Act. These powers are adopted by Section 47(3) of the Act. A reading of the Act indicated that in general terms investigations may be conducted under four broad headings: an investigation by the Police Internal Investigation Division, by the Ombudsman, by a Special Investigator (as in Chief Superintendent Fletcher's case) and an investigation directed by the Minister. It is generally investigations by the Internal Investigation Division or a Special Investigator which lead to charges of the type laid against Sergeant Bradley. It is also generally the case, and it is so in this case, that interviews with witnesses and other documents which come into being during the course of those investigations form the large body of evidence before the Tribunal which the Commissioner relies on to support the charge. In the case of M.F.I. "1", statements and minutes contained in part 6 of the report form a large part of Exhibit C in evidence before the Tribunal (transcript 25.8.83, page 7). The Commissioner submits that investigations of the type which resulted in the report which is M.F.I. "1" are in practical terms ancillary to the powers of the Tribunal and that when charges are laid it is within the power of the Tribunal under Section 76 of the Act to receive those reports and statements into evidence as well as hearing witnesses in the witness box. If this were not so, the Commissioner submits, the Tribunal would be more in the position of a Court of law, strictly bound by rules of evidence and procedure, and the spirit of the Act may not be carried over into the workings of the Tribunal. «/V, RE: M.F.1.2 Td s The Commissioner further submits that it is obviously Open to the Tribunal to use or discard as it sees: fit those documents which are placed before it but that a document such as M.F.I. "1" should be seen by the Tribunal to avoid any suggestions that matters have not been investigated properly and to allow the Tribunal to make any recommendations, comments or directions in relation to further investigation of the charge before it or any future investigations of unrelated matters. When looking at the report which forms M.F.I. "1", the Commissioner further submits that there is no question that parts 5.B. and 5.C. and the statements contained in part 6 (some of which form part of Exhibit C) are relevant. It is true that some of parts 5.8. and 5.C. contain comments and opinions by Chief Superintendent Fletcher. However, it is equally true that documents in part 6 contain opinions by Fletcher and other officers and a large number of these documents are already before the Tribunal. The Commissioner submits that these opinions and comments by experienced police officers are again matters which the Tribunal may have regard to and to accept or reject as it sees fit. The Commissioner further submits that the remainder of M.F.I. "1" is in the same category and therefore admissible. The Commissioner also submits that M.F.I. "1" is admissible on the basis that it may be from the Tribunal's reading of M.F.I. "1" that it sees matters which go to the innocence of Sergeant Bradley and the Commissioner therefore sees the admissibility of M.F.I. "1" as a matter of fairness and balance. While the Commissioner is the person who laid the charge against Sergeant Bradley the Commissioner also sees himself and those who act for him in a role of assisting the Tribunal in its deliberations and consequently feels that any relevant matter should be placed before the Tribunal. The document M.F.I. "2" is a report by Chief Inspector Burrows of the Australian Federal Police dated 2 December 1981. This was a report that came into existence following a direction by the then Assistant Deputy Commissioner of Police to Chief Inspector Burrows to investigate matters involving Sergeant Talbot in what has been referred to before the Tribunal as the St Mary's incident of 10 December 1980 and the matters which flowed from that incident. Because Sergeant Bradley's investigation of those matters is the subject of the charge the Commissioner aaf 12% 12: submits that the report is relevant and should be-admitted into evidence. M.F.I. "2" did not come about as the result of an investigation conducted under the Act as the "complaints" legislation was not in force at the time (transcript 25.8.83, page 32). However, it is clear from the style of the report and the statements taken from witnesses that the investigator anticipated the form of enquiry that would be conducted under the Act by the Internal Investigation Division and conducted his investigation in a similar form. Therefore, while not strictly an investigation provided for by the Act, the Commissioner submits that it is a matter of which the Tribunal may appropriately inform itself in the terms of Section 76 of the Act. Indeed, the Tribunal has already before it statements and other documents from the report forming part of Exhibit C. The Commissioner further submits that the report forming M.F.I. "2" is an important document as it is not only the first investigation in time into Sergeant Bradley's investigation of the St Mary's incident, but also an investigation of the original incident. As such it is the Commissioner's view that this part of the report would loom large in the Tribunal's deliberation of the adequacy of Sergeant Bradley's actions. The Commissioner further submits that the Tribunal should view M.F.I. "2" to allow the Tribunal to comment on the adequacy or otherwise of the investigation which resulted Tt MsPsdes ""2"5 The Commissioner further submits that the Tribunal may have regard to the opinions and comments of Chief Inspector Burrows as an experienced police officer and accept or reject those comments as it sees fit. The Commissioner finally submits that on the question of fairness and balance the Tribunal should have the benefit of Chief Inspector Burrows' recommendations (and the reasons for those)." aul V3ko 13. It was submitted on behalf of the Member as follows: "These documents should not be admitted as a matter of fairness in the exercise of the Tribunal's discretion under s.76 of the Complaints (Australian Federal Police) Act, 1981. The reasons why this iscretion shou e exercised against admissibility of the said documents are: 1. The material contained therein is largely irrelevant to the case at hand and contains facts which were revealed after the time at which the alleged disciplinary offence occurred. The evidence relevant to these proceedings related only to the adequacy of investigation at the time when it was conducted. Subsequent revelations are irrelevant. 2. The material refering to alleged unreasonable delay and inadequate investigation in sub-sections 5B and 5C of MFI.1 may arguably be relevant to the case at hand but is highly prejudicial to Bradley in that it contains conclusions of fact and law.pursuant to which the disciplinary charges have been brought. It is of no probative value. The accuracy.of these conclusions is contested and should be proved (if it can be - which we deny) by the already existing evidence in these proceedings which has been subject to the adversarial process." I adopt the submissions on behalf of the Commissioner in this matter. Much of the material in the two MFIs is beyond the scope of these proceedings and will simply be dismissed from my considerations. The central issue in the proceedings is the standard and adequacy of the investigation by the member both Chief Superintendent Fletcher and Chief Inspector Burrows are obviously experienced police investigators and their analysis and opinion as to the investigation is of assistance to the Tribunal. Of course their opinions are only just that the ultimate evaluation of the investigation is one for the Tribunal itself. ./14. om 14, The Member's performance is to be evaluated in the circumstances in which he conducted the investigation and in the light of what he and others perceive to be the aim and scope of his investigation. With this in mind I view any unfairness to the Member as minimal and the relevant parts of the material to be of use to the Tribunal in its deliberations. Consequently I admitted the MFIs into evidence as Exhibits G and H respectively. The relevant chain of command in the eastern region of the Australian Federal Police between December 1980 to March 1981 is important the regional commander was Chief Superintendent Antil]l. Next in line was Acting Chief Inspector Casey, Officer in Charge Protective Services Branch. Both Bradley and Swinton were Acting Chief Inspectors in that Branch and both were responsible to Antill through Casey. Sergeant Talbot worked in the Protective Services area. During the period it appears that Bradley was on leave between 12 December 1980 to 12 January 1981 inclusive. Chief Superintendent Antill was absent during much of February 1981 on an officers course. It is not clear who acted in Chief Superintendent Antill's position in his absence and what, if any, role that person played in the investigation. All the members in the above chain of command gave evidence before me. Although I raised the question with both parties Sergeant Talbot did not give evidence before me. Hence I am not in a position to make any personal subjective evaluation of Sergeant Talbot on his evidence but must rely upon the opinions of others along with various statements that have been tendered before me. It is necessary to set out in chronological order what happened in respect of the investigation of Sergeant Talbot's complaint. Recollections of the various witnesses in some areas is vague and there are some specific areas of conflict. I will further those conflicts below. woh IB. 35: The incident itself arose in the late hours of 10,December 1980 as set out above. On 11 December 1980 Inspector Casey received telephone calls from Gale and another officer in respect of this question of whether or not Gale had been late for duty the previous evening. As a result of these calls Inspector Casey issued instructions that all members involved in the incident submit reports on the issue of whether Gale had reported late for his shift or not. Those reports from Talbot and others were submitted to Inspector Casey on 12 December 1980. Bradley recalls that the reports were actually given to him on that day and he actually handed them to Inspector Casey. On about 12 December 1980 Casey discussed the matter with Antill and informed the Chief Superintendent that he would instruct Swinton to look into the matter also, in a minute to Antill dated 12 December 1980 (Exhibit C6 herein) Casey forwarded the relevant reports to the Chief Superintendent and noted: "I have directed Acting Inspector Swinton to conduct enquiries into the incident with a view to establishing the truth of the matter". Swinton, whose memory is obviously affected by illness and other matters, insisted in evidence that he was given a written direction to conduct the investigation. On the evidence before me I am satisfied that Casey orally directed Swinton to conduct the- investigation and the only written document in that respect is the confirmation set out in Exhibit C6 to Chief Superintendent Antill. Although memories are vague on this issue it appears that about Monday 15 December 1980 Talbot had a meeting with Casey and Antill wherein he requested an internal investigation into the incident. It was about this time that the Chief Superintendent decided that a local enquiry along the lines mentioned above would be carried out in preference to an internal investigation. olf NG 16. Swinton with Senior Sergeant Chrocker, around 16 December 1980 interview Constables Henry and Schneiders concerning the incident. It appears nothing positive was established and no further statements were taken. Swinton's recollection in these matters is vague and Sergeant Chrocker was not called before me. On 17 December 1980 the Turkish Consul General and his escort were assassination. As aresult of this Swinton appears to have been transferred to the escort squad for the protection of Consulor officials. It appears this incident imposed huge workloads and pressure on the whole eastern region, particularly the office in which the various members involved in this matter were working. The pressure however, in this respect, was put upon the whole office and not just Swinton. By this time Bradley had proceeded on leave as from 12 December 1980 not to return to work until 12 January 1981. At this stage, despite the suggestions in some of the investigation reports that Bradley was fe | involved in the inquiry on the evidence before me I am satisfied that By. Bradley at this stage had not role whatsoever in the inquiry up to this point. Bradley returned from leave on 12 January 1981. His recollection is that on about 16 January 1981 he made a general inquiry of his colleague Acting Inspector Swinton as to the progress that was being achieved on the Talbot inquiry. He recalls that Swinton indicated that he needed assistance Bradley claims that at that time he offered assistance which was accepted by Swinton. To use Bradley's own words he "grilled" Henry on or about 19 January 1981. He considered Henry to be the central witness in the issue. He considered that other people had submitted statements and in his opinion at that time did not feel obligated to interview other people separately. aia VWie Ws Bradley noted on Exhibit C6 that he had interviewed Constable Henry on 19 January 1981. Apparently, as a result of that interview, further statements were submitted by both Constable Henry and Constable Gale on 23 January 1981. Bradley further endorsed Exhibit C6 "conflicting statements file please" initialled that endorsement and dated it 30 January 1981. Bradley claims that he orally informed Chief Superintendent Antill about this last matter. The Chief Superintendent has no real recollection of that occurring. Chief Superintendent Antill states that during the period in which he was Regional Commander the Talbot inquiry would have been regularly discussed at officers meetings held regularly in the region. However there is no detailed evidence as to the manner and the extent to which the issue was discussed at such meetings. Chief Superintendent Antill was away on a course between 9 February 1981 to 6 March 1981 and he said that he did not have any official contact in respect of the incident during that period. Upon Chief Superintendent Antill's return Talbot continued to press for results in respect of his complaint. This apparently occurred around 16 March 1981 and as a result Chief Superintendent Antill indicated to Talbot that results of the inquiry would be available that week and requested Bradley to urgently finalize the report on the Talbot matter. Chief Superintendent Antill has no detailed recollection of this part of the incident. Bradley produced his report on 19 March 1981. That report was tendered as Exhibit C9 in the proceedings and states as follows: »+-/18, 18. "Of ficer-in-Charge J! EASTERN DIVISION St Marys Station - Incident of 10 December 1980 I refer to the abovementioned incident and upon examining the available reports, I find conflicting statements, in that the statement of Protective Service Acting Senior Sergeant W.H. TALBOT differs in the important aspect of cause, and corroboration, as the statements of Protective Service Senior Constable TEBBET, Protective Service First Constable HENRY and Protective Service Constable SCHNEIDERS agree that Protective Service Constable GALE reported for duty at 9.55pm. 2. Protective Service Acting Senior Sergeant TALBOT in his.statement states that he, after speaking to Protective Service Constable GALE for some time, suddenly became conscious of GALE's breath smelling of alcohol, and questioned his ability to drive a vehicle. Should he have detected the member GALE in such a condition, which.was apparently not obvious at the commencement of the.conversation, surely consideration would necessarily have to be given to terminating the member from duty, in accordance with Section 11(1)(a) of Australian Federal. Police Regulations, a course which was not undertaken. Obviously the Protective Service Acting Senior Sergeant considered that GALE was. fit to remain on duty. However, according to the Protective Service Acting Senior Sergeant, the whole matter. commenced upon a difference of opinion as to when Protective Service Constable GALE commenced du y, ie at 10.50pm as alleged by the Protective Service Acting Senior Sergeant, or at 9.55pm as corroborated by the aforementioned Constables. 3. . During my enquiries, I have questioned Protective Service First Constable HENRY at length,.and he denies the conversation alleged by the Protective Service Acting Senior Sergeant, in that he did not complain about GALE, to him. of 19% 4. I respectfully submit that it only remains that the report by Protective Service Acting Senior Sergeant TALBOT, in which he alleges a complaint by Protective Service First Constable HENRY, is not corroborated by HENRY, whereas Protective Service Constable GALE is corroborated by Protective Service Constables HENRY and SCHNEIDERS. 5. The only question remaining is as to whether Protective Service First Constable HENRY was in any way intimidated, and he assures me that this is not the case. 6. Therefore, I respectfully submit that the entire matter is, on the available evidence, a "non-event" and should have been dealt with entirely at Station level, as befits a matter of this nature. (B. SRADLEY) Acting Inspector" Upon presentation of the report Chief Superintendent Antill endorsed that report as follows: "0O.1.C. Protective Services Branch. Please advise A/Protective Services Senior Sgt Talbot and file W.L.A. 19/3/81". Chief Superintendent Antill recalls that it was as a result of a direction by him to Casey that Senior Sergeant Bradley took over the inquiry in respect of the Talbot matter. That recollection is not supported by any other members in evidence. Bradley claims as I have stated above that it was as a result of his offer to help that he became involved in the inquiry. Inspector Casey took the view that right up until the end of the matter it was still an inquiry which was a responsibility of Swinton although he realised that Bradley as a colleague was assisting Swinton to conduct the inquiry. On the evidence before me I can only conclude that Senior Sergeant Bradley's explanation of how he became involved in the inquiry should be accepted. In fact in the particulars the Commissioner has indicated that that is the basis upon which these proceedings are brought. wef 20. 20. Chief Superintendent Antill recalls that on about, 19 March 1981 Bradley's report was on the top of a file of papers specifically raised to cover the question of the Talbot inquiry. Other persons involved in the matter recall that there was no particular file raised in respect of the Talbot inquiry but rather that Bradley's report together with all the statements that had been collected on the incident thus far were pinned together and placed with the general St Mary's Station file. Chief Superintendent Bunt was called in evidence and indicated that he had conducted a complete file search in the registry of the Australian Federal Police Eastern Region and could locate no separate file raised in respect of the Talbot inquiry but rather was of the view that the papers in respect of the Talbot inquiry merely formed part of the St Mary's Station file. In this area recollections are vague and on the evidence before me I find that Chief Superintendent Antill on about 19 March 1981 had presented to him all the relevant papers and statements in respect of the Talbot inquiry together with Bradley's report (Exhibit C9) at the time in which he considered the matter and made the relevant endorsement on 19 March 1981. To derive the above chronology of events is difficult. Recollections in some areas are vague and in other areas are in direct conflict. I have indicated above the way in which I have resolved factually some of those conflicts. Apparently after 19 March 1981 the papers were filed and Senior Sergeant Talbot informed. There were subsequent developments that are mentioned at length in the various investigation reports. However these matters are well outside the scope of these proceedings. «ofl. 21. It is now necessary to look in detail at some of the circumstances in which Bradley conducted the inquiry. Further, it is necessary to examine his explanations for the mode in which he conducted the inquiry and his answers to the various criticisms of the mode in which he did conduct that inquiry. The inquiry in which Bradley was involved was internal management inquiry. It was clear that Chief Superintendent Antill had decided to not make it a proper internal affairs investigation. Further, the inquiry in the terms of Exhibit C6 was to bea view to establishing the truth of the matter. It is obvious that Bradley perceived the inquiry as an internal one and as a management inquiry. It is clear it was never envisaged that the matter would be prepared as a full brief of evidence with a view to disciplinary hearing such as this or any criminal charge. Bradley himself had no involvement with the inquiry until about 16 January 1981. His involvement arose as a result of his volunteering to assist Swinton in the inquiry. The responsibility for the inquiry at that stage was clearly with Swinton. Inspector Casey, the immediate superior of Swinton and Bradley, in evidence indicated that he always regarded the inquiry as the responsibility of Swinton. Bradley, however, conceded that he had assumed responsibility for the inquiry when he volunteered to assist his colleague and the offer was accepted by Swinton. It is obvious that the assassination of the Turkish Consul General and his escort on 17 December 1980 put pressure on the whole Eastern Region Office, not only Swinton but Bradley and others. Bradley indicated that he also assumed extra responsibilities in this respect following the occurrence and his return from leave on 12 January 1981. sel edi 22%. It is obvious that Bradley did not view the matter of the discipline and supervision of the Australian Federal Police Eastern Division as within the scope of his inquiry. Many of the matters raised in Sergeant Talbot's report concerned a more general issue than the particular incident involved. It is obvious that this was not the responsibility of Sergeant Bradley in his investigation but rather the responsibility of Chief Superintendent Antill and Inspector Casey. It is not suggested seriously that either Inspector Casey or Chief Superintendent Antill were less informed about the details of the investigation carried out by Bradley than was Bradley himself. It is obvious that Chief Superintendent Antill, when he considered the matter on 19 March 1981, was in possession of the same material as was possessed by Senior Sergeant Bradley at the time he compiled his report of 19 March 1981. Bradley was very critical about the manner in which Sergeant Talbot had gone about investigating the possible breach of discipline by Gale. He considered that a "wiser supervisor" would have gone there at an earlier point of time with a corroborating witness and discovered for himself that Gale had in fact not attended for duty. Bradley was obviously critical of the way that Talbot had done this and this was an important matter in the compilation of his report and his ultimate view of the incident. Bradley has given his reasons for interviewing in detail only Henry. He took the view that other statements had been made and submitted and also decided that Henry was the key to the issue. He claims to have "grilled" Henry on 19 January 1981 and satisfied himself as to Henry's veracity. As some of the officers involved in the incident have now confessed the falsity of their reports it is now easy to see that Bradley was incorrect in his conclusion. However this matter should not be judged in hindsight with the full knowledge that these particular officers had told untruths in their reports, but rather viewed as Bradley would have seen it at the time when conducting his investigation. --/23. It is clear in his report of 19 March 1981 that Bradley was proposing a mode of dealing with the matter and the problem of Senior Constable Gale. It is further obvious in the compilation of that report that Bradley was influenced by his personal assessment of Sergeant Talbot as a supervisor, a police officer and as aman. The details of Bradley's attitude in these respects and also the justification of his conduct and the mode in which he conducted the inquiry are generally set out in cross-examination in the transcript of 27 January 1983 at pages 129 to page 139 inclusive. At pages 139 to page 142 inclusive the Tribunal directed a number of questions to Sergeant Bradley as to his attitude. Those questions and answers were as follows: "MR CAHILL: Just a couple of things I would like to ask you, Inspector Bradley. What sort of standards were you applying in your consideration of the matter before you came to your endorsement on 30 January and again before you came to your minute which is C9, the one of 19 March? Were you looking only at your judgment of the truth or falsity of the various stories, or were you looking at a situation as well as to whether, if the matter came to a hearing or had to be resolved, a complaint against the others for changing their story or lying or whatever could be sustained on the evidence you had before you? --Sir, I had no knowledge of hearing, no mind - you know, this was the remotest thing that I could ever envisage in relation to this matter. What I was looking at is the fact as to whether Gale was early or late for work, and that is the entire ambit of my particular application. And you found yourself in a conflicting situation where you thought that you could not accept unequivocally Talbot's evidence?---Exactly. For what reasons?---Well, I know him to be an emotional type of person, and with the facts as they stood, his being late arriving at the station, the fact that Gale had already been there, the fact that an argument, some loggerhead situation developing between Talbot and Henry later, that indicates, page 3 of his report, ./24, 24, that Henry was his informant. That is fair comment. But the fact is that with that, coupled with the-reports - and let us be honest, the police report is nothing to discard. If a person says something on report, you can say that it is right. That has been my experience right through my service. I have got that, four reports from the constable: concerned. Where do I go from there? I mean, the issue at that point as I saw it was whether this man was late or early for work. Now, Sergeant Talbot should have at that time, in my assessment, walked away from that particular situation and created his own. Checked out later on?---Exactly, as I would have. Dy The other thing I was going to ask you was: you have indicated, I aie think, quite clearly that you accept responsibility for what occurred on the basis that you volunteered to help and you took it on. I take it at no stage was there any formal change as far aS you were aware where Casey said to you: You are to do Swinton!s work on this point?---No, sir. The situation that prevailed in the last - since 1970, I could say, since 1969, is that I have worked with Alan Swinton in different areas and different phases - we were inspectors clerks together, and we knew each other before that, and it was a help-each-other situation, and if I needed help I would ask him for a bit of assistance and likewise he would ask me; and this is something that built up over decades. It is not just something that has been whipped up in the last - since January. Was Swinton in some health difficulties about this time or not? ---Yes. He is a returned man and he has got a few ailments that would necessarily interrupt his - well, his concentration, if anything else, and his ability to get about as well as he should. That is basically one of the reasons he was retired early. It was in the light of that, you volunteered to help?---I volunteered to help, on that basis, yes. He has always been a friend of mine. The other thing is you mentioned that the procedure in the region at that particular time was that the officers, I suppose, including yourself as an acting officer would have a daily conference with Chief Superintendent Antill? ---Every morning. 000/25. 25. And you are saying that he would review the work on hand, the things outstanding so the total complaint, as it were, Was something that was frequently mentioned?---It would have been mentioned, sir, no risk. Over - I would net be able to recall exactly how often but it would have come up on several occasions. Do you know the reason the matter got some urgency at about the time Inspector Antill asked you to finalize it by way of a report?---Sergeant Talbot was on the doorstep. That is what I understood. Superintendent Antill has given that evidence and you were aware of that?---That is right. I take it the matters you - what you have said about your assessment of Talbot is that you have no evidence, or reason to doubt his truthfulness as an officer. You have.given comment on some of his other qualities? You have mentioned you were not particularly happy with ---? ---His truthfulness can be affected by his emotional state - put it that way. I think that is fair comment. You have mentioned the incident of the affair with another officer's wife. You felt that was something that whilst you do not make the moral judgment, you said that was something that reflected on his credibility?---Reflected on his - Exactly, yes. Something that you have got to consider, I think. I take it from what you have said and I just want to be sure of this, what you were saying is that Talbot had made a report; you were of the view that whatever you said to him, he would stick to that report?---Indubitably. You had no doubt about that?---None. That is one of the reasons you did not bother going to re-interview him?---That is right, sir. But what you did was, you went to Henry and - if I could use a slang term - you grilled him to just ensure if he was going to make any departure from his report?---Yes, well, that is right, yes. «vi 20-0 26. And after you had gone through this process with Henry, what was your view about Henry and his report, as to whether he was likely to stick to it or whether you could "break him down", as it were?---He was pretty strong. He was surprisingly strong and I was of the opinion that there might be something in it in view of the fact that the other counsellors were the same vein and that, of course, the big thing was the fact that he did not go there with another independent officer and the fact that he got there at 11.20 in the evening. You know, you have got to give people the benefit of the doubt under those circumstances. That was your subjective view at that time?---Yes,. I suppose the only relevant time is up to the time that you . submitted the report because you were not involved after that?---Exactly." I believe the questions and answers mentioned above best describe Sergeant Bradley's attitude to the issue. It is clear that Sergeant Talbot's concern about the effect of the incident upon the discipline and supervision of the Australian Federal Police was not a matter that fell to Bradley to solve. That was the concern of the Senior Officers of the Eastern Region of the Australian Federal Police Bradley perceived his role as a very narrow one of dealing with the immediate problem of the allegation of Sergeant Gale's lateness in reporting for duty on a particular day. It was only after Chief Inspector Burrows and Inspector Halmarick investigated a later disciplinary allegation at the St Mary's Station in late 1981 that the full truth of the 10 December "incident" came to light. As the matter developed one can have sympathy for Sergeant Talbot who for a long period felt aggrieved by the situation and continued to complain to higher authorities. The subsequent handling of those complaints after March 1981 was outside Bradley's duty and any fault for that handling cannot be laid at his door. 27. Bradley was guided in his task by his view and personal assessment of how Sergeant Talbot had sought to resolve the problem of Gale's activities from 10 December, 1980. There can be little doubt that if Sergeant Talbot had followed the course of action of going to the Station with a corroborating witness at the time when Gale was scheduled to start duty the issue would have been determined there and then. If one were to objectively view Bradley's investigation as one involving the proper investigation of an offence to be put before a Disciplinary Tribunal or a Criminal Court and not as an internal discipline/management matter Bradley's performance was indeed lacking in the manner particularised by the Commissioner. However, since Bradley entered the investigation on 16 January 1981 and prepared his final report on 19 March 1981 I do not believe the allegation of delay as particularised could be made out. The question of whether the disciplinary offence of neglect of duty has been made out must be view as I said above in all the circumstances including those specifically mentioned above. In this connection the following facts are worthy of particular mention: 1) Bradley voluntarily assisted Swinton and ultimately in.a somewhat informal manner appears to have taken over the investigation at a time when Swinton had already commenced the matter. 2) Bradley himself was on leave between 12 December 1980 and 12 January 1981. 3) There is no doubt that pressures on the office including both Bradley and Swinton were considerable following the Turkish assassination on 17 December 1981. 4) His immediate superior Acting Chief Inspector Casey always viewed the investigation as Swinton's responsibility. «aif 2B: 28. 5) Chief Superintendent Antill was absent for much of the later part of the period. 6) Bradley viewed his role in the investigation as a very narrow matter. 7) The question of Australian Federal Police discipline, control and supervision did not appear to be a direct responsibility of Bradley. However, any investigator such as Bradley should realise that such issues are at stake, 8) It was not Bradley's decision to deal with the question without internal investigation requested by Talbot jn his initial report. These matters are not all the circumstances that need to fore for consideration but only some. Bearing in mind the standard of proof required in these matters as set out in Scanes -v- Wilson above, although objectively Bradley's investigation could be subject to considerable criticism, the prevailing circumstances in my view lead me to the conclusion that I cannot be satisfied that in respect of this investigation Sergeant Bradley committed the disciplinary offence of neglect of duty. Although it is not a matter for my direct concern I am amazed at the cost in both financial and manpower terms that has been occasioned by these matters. The incident and its subsequent handling highlights the necessity of looking closely at how the Australian Federal Police and its senior officers would deal with such an incident in the future. The formal finding of the Tribunal is that Senior Sergeant Brian Bradley is not guilty of the disciplinary offence alleged in charge number 59/8283. R.J HELL SoM lember [6 crben /¥ He,