[1984] REPDT 5 IN THE FEDERAL POLICE ) ) No. 1 of 1984 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against FIRST CONSTABLE LEX FREDERICK MCQUEEN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 ORDER THE PRESIDENT (KELLY J) 16 AUGUST 1984 CANBERRA A.C.T. THE TRIBUNAL ORDERS THAT in respect of the disciplinary offence alleged in Charge No. AFP:20/8384 more particularly described in the findings handed down this day of which he has been found guilty Senior Constable Lex Frederick McQueen be dismissed from the Australian Federal Police. IN THE FEDERAL POLICE ) No. 1 of 1984 _—~ DISCIPLINARY TRIBUNAL THE COMMISSIONER OF POLICE against FIRST CONSTABLE LEX FREDERICK MCQUEEN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 FINDING THE PRESIDENT (KELLY J) 16 AUGUST 1984 CANBERRA A.C.T. THE TRIBUNAL FINDS THAT:- Senior Constable (then Detective (P) First Constable) Frederick McQueen is guilty of the disciplinary offence alleged in Charge No. AFP:20/8384, namely, That he, being a member of the Australian Federal Police, was guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations in that at or about 3 o'clock in the forenoon on 21st October 1982, at intersection of Wickham and Gipps Streets, Fortitude Valley in the State of Queensland, he, whilst in the company of Detective (P) First Constable P.pD. McCowan, did conduct himself in an improper manner otherwise than in his official capacity, by the use of lewd and derogatory words concerning Mr. Malcolm Sue of Malcolm Sue Security Services Company of 608 Ann Street, Fortitude valley, when in conversation with three employees of the said Malcolm Sue, namely Peter McCulloch, Daniel Walker and Roman Li, at the place and at the time aforesaid and further that at the same time and place he did use lewd and derogatory words directed at Mr. Roman Li one of the aforesaid employees of the said Malcolm Sue. IN THE FEDERAL POLICE ) ) 'No. 1 of 1984 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against FIRST CONSTABLE LEX FREDERICK MCQUEEN IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR PENALTY KELLY J - President 16 AUGUST 1984 On 7 June 1984 I published my reasons for the finding which I proposed to make following a charge of a disciplinary offence laid against the then Detective (P) First Constable, now Senior Constable, Lex Frederick McQueen. I now hand down my formal finding. Particulars of the charge appear in my earlier reasons and may be taken as incorporated, so far as is necessary, in these reasons. Subsequently, as required by s.67(5) of the Complaints (Australian Federal Police) Act 1981 (the Act), I consulted with the Commissioner concerning the penalty appropriate in respect of the offence of which I proposed to find Senior Constable McQueen guilty. I gave Senior Constable McQueen notice under s.67(7) of the Act that I was considering that it might be appropriate to impose upon him a penalty either of reduction in rank or of dismissal. His: legal advisers sought an extension of time within which the written statement concerning penalty referred to in s.67(7) of the Act might be furnished. The statement came to hand on 9 July 1984. In it appeared a paragraph which read, "In 1980 McQueen was the subject of a member against member complaint and appeared before Sir Colin Woods, the then Commissioner of Australian Federal Police. McQueen. was found guilty and fined $90-00. McQueen' immediately lodged an appeal, the outcome of which he is still not aware." ps I had by that time received from the Commissioner a copy of Senior Constable McQueen's service record including an entry which, amplified by particulars furnished, indicated that Senior Constable McQueen had been found guilty of a disciplinary offence constituted by "improper conduct other than in [his] official capacity contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations [the Regulations], in AiKe at or about 9.00 pm on Thursday, 21 February 1980, [he] did unlawfully assault Carmel Ann Crawley and did direct obscene words at [her] whilst leaving the precincts of the Department of Health Building, Adelaide Street, Brisbane". The record showed that Senior Constable McQueen was fined in respect of that offence a total of two days pay. I enquired of the Commissioner whether a record could be found of the appeal said to have been lodged. It could only have been made to the Disciplinary Board established under the now repealed Regulation 24 of the Regulations. Under Regulation 38(2) (also now repealed) an appeal was to be lodged within 14 days after the date on which the member was notified of the determination or, where he had before the expiration of that period applied to the Disciplinary Board for an extension, within such further period as the Board allowed. Senior Constable McQueen's' solicitor and _ the Commissioner have each furnished me with a copy of. a memorandum which he addressed to Acting Chief Superintendent K.M. Horsell of the Executive Services Division of the <_ Australian Federal Police at Canberra on 17 December 1980. The memorandum acknowledges receipt of notice of the determination on 18 September 1980 and goes on to say, "After being served the notice mentioned above, I contacted Personnel Division, by telephone, with a view to obtaining the procedure in relation to my appeal. Personnel were unable to supply details as to how to appeal, but did inform me that I was not able to appeal until after the fine had been paid. This procedure appeared strange and therefore I delayed payment until further information was available. As this information was not forthcoming, I further postponed the payment of the fine. I have every intention of appealing against this decision. As it appears that the advice I have received from Personnel Division, Canberra is incorrect, I consider it is the fault of Personnel Division that I have not already appealed. In view of the above circumstances, it would be appreciated if an extension of time may be given for my appeal to be heard, after which any payroll deductions still required will be expedited." I am satisfied that Senior Constable McQueen lodged no appeal in 1980 against the determination of guilt of the disciplinary offence within the time limited by Regulation 38 nor within any extension of time granted by the Disciplinary Board under that Regulation. No appeal against the determination is now possible nor, on the true construction of Regulation 38, could it have been possible -4- in December 1980. I am therefore bound to accept that Senior Constable McQueen was validly found guilty of the disciplinary offence dealt with by Sir Colin Woods in 1980. By his letter of 2 August 1984 Senior Constable McQueen's solicitor advised that he had been instructed that, as a result of certain medical advice, Senior Constable McQueen had tendered his resignation from the Australian Federal Police on 25 July 1984. I do not know whether that resignation was tendered in accordance with the provisions of s.37 of the Australian Federal Police Act 1979 but, in my opinion, the tender does not, in any event, relieve me from the task of imposing what I conceive to be the appropriate penalty in respect of the disciplinary offence of which I have found Senior Constable McQueen guilty. Section 67(1) of the Act requires that in the circumstances there set out, applicable here, the Tribunal is to hear and determine the proceedings. Senior Constable McQueen was Bex on 21 January 1958. He is single. He joined the Commonwealth Police on 6 March 1978 and was appointed to the Australian Federal Police in the rank of Constable on 19 October 1979. In January 1979 he received the Acting Commissioner's compliments for his participation in a Foreign Fishing Vessel Boarding Party. His service history summary upon which he has had an opportunity to comment contains some remarks critical of him. These I ignore since I take the view that such remarks are in general evidence only of what I may describe as the inevitable "growing pains" suffered in -5- the maturation process, On the other hand, in September 1979 he was the subject of the following comment, "Extremely keen, fit and hardworking, gave his all, excellent potential." Following a course in March-April 1981 he was described as having impressed by his attitude, being always eager to learn and needing very little supervision. In June 1981 following another course he was described as having worked well and achieved a good result. In March 1982 it was said of him that it was believed that he would develop into a valuable officer. In June 1983 a report on him showed the following - "[He] has shown good results, if he continues on in this manner he will become an excellent detective." Despite the disciplinary offence in 1980 he seems to have advanced in the ordinary way to the grade in his rank which he presently holds. Senior Constable McQueen May therefore be regarded as an officer who has shown promise but that promise has been seriously marred by two disciplinary offences which have something in common and which were committed within three years of each other. Both were committed within the first five years of the member's service. They cannot, in my opinion, be regarded as acceptable conduct on the part of a police officer. One involved a fellow member of the Australian Federal Police, the other involved citizens going about their lawful occasions. I have no more knowledge of the 1980 disciplinary offence than appears from what is set a en out above. I must, therefore, accept that the penalty imposed by the then Commissioner was entirely appropriate to the offence at the time. But the finding of guilt in respect of that offence and the imposition of the penalty should have brought home to him very strongly that such behaviour is not to be tolerated. I have given careful consideration to the statement made on behalf of Senior Constable McQueen. I have, aS I have indicated, taken into account all the favourable aspects of his service history while discarding the unfavourable comments on his service. Nevertheless, I am satisfied that the behaviour of which he has now been found guilty and which is detailed in my reasons handed down on 7 June 1984, when coupled with the incident in 1980, warrants his dismissal from the Australian Federal Police. While one such incident may not necessarily warrant dismissal, two of them certainly do. There is no countervailing length of admirable service to mitigate the seriousness of the offences. There will be an order that Senior Constable McQueen be dismissed from the Australian Federal Police. | ? 4 ye I certify that this and the jive preceding pages are a true copy of the , Pas ey a 2 ' Reasons for Jademont herein of his Honour Mr. Justice .#'!y - Associate 23