Liga) AFPDT 3 IN THE FEDERAL POLICE ) ) No. FPDT 4 of 1984 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against "SERGEANT ROSS EVAN GREAVES FINDINGS Member Mr R.J. Cahill, S.M. The Tribunal finds that Sergeant Ross Evan Greaves is not guilty of the disciplinary offence alleged in charge 30/8384 namely: "At Launceston in the State of Tasmania on.or about 2 March 1983.being the. driver of a motor vehicle registered number ZUE 090 the property of the Commonwealth he did drive the said motor vehicle in the grounds of North Lodge Motel situated at Brisbane Street, Launceston in such a manner that he did negligently cause damage to the motor vehicle, being property belonging to the Commonwealth and made available for use of the said Ross Evan Greaves". "CAHILL, S.M. Member IN THE FEDERAL POLICE ) DISCIPLINARY TRIBUNAL ) Ro. FPDT 4 of 1984 THE COMMISSIONER OF POLICE against SERGEANT ROSS EVAN GREAVES JUDGEMENT AND REASONS FOR FINDING The commissioner instituted proceedings against Sergeant Greaves by a notice dated 10 February 1984. The notice charges the member with a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police discipline regulations which in turn alleges a contrawention of the provisions of division 1 of those regulations; namely, paragraph. Ii0(c). The notice specifies the nature and particulars of tlhe alleged disciplinary offence against Sergeant Greaves in the following terms: "At Launceston in the State of Tasmania on wr about 2 March 1983 being the driver of a motor veltnicle registered number ZUE 090 the property of tte Commonwealth he did drive the said motor vehicle in the qrounds of North Lodge Motel situated at Brisbane Street, Launceston in such a manner that he did negligently cause damage to the motor vehicle, being property belonging: 'to the Commonwealth and made available for use of tthe said Ross Evans Greaves." Paragraph 10(c) provides in its relevant part: "A member shall not wilfully or negligently waste or cause any loss or damage to any property belonging to -the Commonwealth and made available to or for the use off a member of the Australian Federal Police." In my view the relevant elements to be established ty the commissioner » ares (a) the 'proof of negligence; ~ e (b) that' the negligence caused the damage ailleged; eR) (c) that the property in question belonged to the Commonwealth; - and . (d) that the property was made available for the use of the member. The key question in this case is obviously: Did the member act negligently. in his driving and management of the motor vehicle in question on the evening in question, in the ground of North Lodge Motel in Launceston, Tasmania? All other elements, whilst they must be proved, have never been seriously contested | by either party on the evidence before me. It is now well established that the commissioner bears the onus of proof before the Tribunal and the standard of proof is that outlined in SCANES v WILSON 3 ACTR 20 at 26 as follows: "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) 20 FLR 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 the 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 and169 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- -25 (1938) ALR 534 at 342: ey '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 mand 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 occurrence of a given description, or the gravity of the consequemces 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.'" per Fox J. @ Negligence in the context of this case requires a significant departure from the standard expected of the reasonable and prudent driver in all the attendant circumstances in relation to Sergeant Greaves and his driving and parking performance on the night in question. Such departure, of course, would have to be proved to the relevant standard set out above. "Sergeant Greaves in March 1983 was a sergeant stationed in Hobart with various duties that have been outlined to me by Chief Inspector Connell and Sergeant Greaves himself. It was obvious he was an officer heavily burdened with many and varied duties requiring, on the evidence. working 150 hours overtime in the several months prior to the incident. His work performance and waried duties are set out in the exhibit produced by Chief Inspector Connell setting out the overtime that he had worked in the relevant period. On 2 March 1983 he travelled to Launceston from Hobarit, departing in the early hours of that day. He arrived at Launceston and performed duty until about 2 pm. At that time, having been given permission to work a split shift, he rested until about 7 pm, at which time on duty, he proceeded to the Launceston casino. He remained there between 7 pm and approximately midnight.. During the period he performed intelligence and surveillance functions. He fiurther had a meal and on his oun evidence consumed two glasses of wine with dimner and between six to ten eight ounce glasses of beer from dinner. to 11.30 pm when he left the casino. He drove from the casino back to the motel where he was staying. He had noticed nothing unusual, certainly not noticed the presemce of oil on the: floor or anywhere else in the vehicle. He reached the-motel aid there was confronted oo hia with a necessity to park his vehicle in an underground garage area. At that time he said he felt tired but claimed he felt no effects of the alcohol he had consumed. He then performed the parking manoeuvre out of which these charges arise. Before proceeding to consider the driving manoeuvre of the member, it is necessary to make some comment about the evidence as to the conditions prevailing at the accident' scene. I have not personally visited the scene but was assisted by descriptions of various witnesses, a plan prepared by Sergeant Davies and a number of photographs that adequately depict the prevailing conditions and slopes cambers and other matters arising at the scene. It is clear at the time the manoeuvre was performed the lighting conditions were poor. The space to manoeuvre the vehicle was confined, the gradient of the parking area involves a steep slope in two different directions and the width of the parking area between a wall and a concrete post is limited in relation to the width of the vehicle concerned. The vehicle itself was a powerful 5.8 litre motor vehicle. It was responsive to acceleration and very heavy on the steering at low speeds. The sergeant entered the parking area travelling along the boundary wall depicted 'in the plan and commenced to do a right hand turn manoeuvre going frontward into the garage area. In that manoeuvre he failed to allow sufficient space and the rear near side of the vehicle, around the rear wheel arch, came into contact with the side wall of the garage space. The sergeant realizing his difficulty attempted to reverse the vehicle and in reversing he was required to move the vehicle down the steep slope. He claims that in the reversing process his foot slipped from the brake onto the accelerator and the vehicle collided with the rear boundary fence. At that time Sergeant Greaves believed his foot slipped due to his failure to place this foot squarely on the appropriate pedal. He attempted to accelerate up the steep slope on tor a flat area , nearing the entrance of the garage space. He performed that manoeuvre and when the car was about one third to on quarter inside the building line of the garage space ved/= he attempted to brake. At that time the sergeant claims his foot slipped from the brake pedal and jammed onto the accelerator pedal causing the car to lurch suddenly and collide with the front wall. At the scene the sergeant says that he was not totally aware of the cause of the last collision' but concluded that it may have been the heel/toe movement he was using to move his foot from accelerator to brake. The car was then brought to a stop by the collisiom. The sergeant placed it in the! appropriate gear, left the vehicle, made a very brief inspection of damage and considered at that time the damage to be only superficial. Feeling tired and not wishing to do anything further at the scene he entered his motel room and shortly afterwards contacted his regional commander, Chief Inspector Connell in Hobart. He had a brief telephone conversation with Chief Inspector Connell wherein he reported the collision and stated that the damage was only superficial involving a scrape along the side. Chief Inspector Connell inquired as to whether he could continue the task in Launceston. Sergeant Greaves indicated he could and the conversatiom concluded. Sergeant Greaves states he had difficulty sleeping, «consumed some more beer and then rested at his motel. The following morning, @n inspection, he discovered the car in the garage space was damaged more than he had at first considered. He was able to drive the vehicle to the Launceston headiquarters of the Australian Federal Police, a short distance away, without any problem. The sergeant is uncertain at this stage whether he noticed any oil on tithe vehicle or anywhere in the vicinity of the vehicle. At Launceston Headquarters Acting Sergeant Davies of? the local Australian Federal Police contingent noticed the sergeant to be astnen and shaken and was concerned about Sergeant Greaves' condition. Sergeant Davies performed a preliminary investigation into. the incident and also arranged medical examinations for Sergeant Greaves. Sergeant Davies himself, due to illness, was unable to give evidence before the tribunal; however, his statememt was admitted by consent as exhibit. a Sergeant Davies states that he discovered at the p@dice station at Launceston on that morning the presence of an oily substance on the driver's floor of the vehicle. He states on page 3 of his statement: "The slippery condition of the accelerator 'and brake pedals were investigated. A quantity of substance which was of the same consistency, appearance and taste as sump oil was found on the floor of the vehicle im front of the drivers seat and on the rubber pad of the break and accelerator foot pedals." Following the medical examinations of Sergeant Greawes, he was declared by a medical officer to be unfit for duty and for driwing. He was then taken back to Hobart. The vehicle in the next day or so was also transported back to Hobart. In Hobart, some two days following the incident, the vehicle was examined by. Mr Biega and Mr Witcombe of the Department of Administrative Services mechanical department in Hobart. Both of those witnesses indicatedi on their examination they could find no presence of any oily substance on either brake or accelerator pedals. However, they described an oily substance both, on the mat underneath the drivers feet and also in the vicinity of the side b@ttom of the door on the drivers side. « In the hearing before the tribunal much was made of tihe conflict between the Findings of Sergeant Davies and the findings of the two imechanical witnesses mentioned. I did not find it strange that there is some: conflict in that evidence. After all, Sergeant Davies examined the vehic/le withon hours of the occurrence and we have no detailed evidence of what happrened to the vehicle, who handled the vehicle and other matters of that nature betiveen the time of the incident, when these two witnesses came to examine it. _I find it, on the evidence before the tribunal, impossible to exclude the hypothesis that oil was in the vicinity of the drivers mat and on the relevant pedals as mentioned and: indicated by Sergeant Davies in this report. Various investigations then followed. Sergeant John Jennings was instructed to investigate the circumstances surrounding the inciden't in Launceston. In ; Ag 1 weed /= relation to that investigation some serious comment needs to be made. It transpired during the hearing that I asked Sergeant Jennings why he had not directed any questions to Sergeant Greaves as to the possible consumption of alcohol or otherwise on the night in question. It seemed to me that possibility at least should be excluded where an officer has attended a place like a casino where alcohol would normally be consumed. I was surprised when Sergeant Jennings indicated to me he had been instructed by Chief Inspector Connell not to pursue the question of alcohol in his investigation of the accident. At the time this information came to my knowledge Chief Inspector Connell had left the Australian Federal Police and hed already been called as a witness and excused. I find it amazing that a full investigationof the circumstances of an accident in a police vehicle would not involve the consideration of any possible consumption of any alcohol. I have paraphrased the explanation of Sergeant Greaves as to how this accident occurred. Sergeant Greaves, with some minor exceptions, has been reasonably consistent in the various accounts he has given in respect of occurrences at the accident. One matter of some discrepancy. in the question of whether his foot slipped on the first occasion in the reversal procedure. In some accounts he has indicated no evidence of slipping, in others he has. Of course, the description given to Chief Inspector Connell immediately after the incident was of necessity brief and certainly was not in my view to be taken as a real and considered explanation of the accident by Sergeant Greaves. The question of tiredness, stress and the possible effects of alcohol need to be looked at as a possible explanation in this'matter. The evidence I have before me on the question of alcohol is simply the evidence from Sergeant Greaves himself, voluntarily provided by Sergeant Greaves initially in answers to questions somewhat belatedly directed to him by Chief Inspector Connell as to his alcohol consumption that night and elaborated upon by him at the hearing. On this question I found Sergeant Greaves to be frank and honest and he has been relatively consistent about his alcohol consumption since he was first asked up until the time he have evidence before me several days ago. Of course, I 8/- can apply my commonsense to the' matter and there is no doubt the consumption of any alcohol has some effect on any person. In this case however, the sergeant had consumed the alcohol, which is a reasonable amount, over a period in excess of five hours and during that period had also had a meal. He would certainly have been affected to some degree by the alcohol consumed but on the evidence before me I find that a precise opinion would be mere speculation. I find that net effect of all of the evidence about the effect of alcohol upon the member at the time of the accident inconclusive in my judgment. Perhaps if the matter had been pursued expeditiously at an earlier point in time that evidence may have been of more value to the tribunal in its assessment. In any event the commissioner, in this case, has not sought to heavily rely upon the alcohol consumption of the member. as of particular negligence. There are cases where a significant consumption of alcohol could lead to the conclusion that a person would be negligent in even attempting to drive in that condition cf. O'Hara v O'Keefe (1959)76 WN (NSW) 546. @n the evidence before me I cannot find that such a situation exists in this case. Extreme stress, tiredness and exhaustion, if it is known and appreciated by a driver, can in itself amount to evidence of negligence cf. Brown's Traffic Offences page 140 paragraph 8.15. Certainly Sergeant Greaves was tired, was under stress, and there is quite an amount of evidence about the additional work he had been performing, the onerous duties and things of that nature. But I am not satisfied that his condition was such that in itself it could amount to negligence to merely. drive a motor vehicle in his condition. All of these matters have to be considered in looking at the explanation for the accident. On all of the evidence I cannot. exclude the explanation given by Sergeant Greaves as to the cause of the accident. There is no doubt that the initial manoeuvre whereby he came into contact with the side wall grazing the wheel arch on the near rear side was an error in calculation and judgment. However , that error in calculation and judgment must be looked at in the context of the difficult parking conditions, the tight and confined spaces, the heavy handling of the vehicle, the power of the vehicle, and the obvious poor lighting conditions that prevailed on the night in question. That error of judgment in my view in itself is insufficient to amount to negligence in the terms I have mentioned. we 9/= The second collision of course involves the reversing procedure, which in itself was appropriate. I could not exclude that in fact the oil on the pedals of the accelerator and the brake played some considerable role in the sergeant reversing into the rear wall. The description by the sergeant of his actions prior to the third collision needs examination. According to Sergeant Greaves on his evidence before the tribunal he had accelerated the car up the slope close to the flat part of the parking area to a situation where the car was on third to one quarter inside the garage area. At that time he thought it appropriate to brake and attempted to brake. His foot slipped from the brake pedal and jammed onto the accelerator causing the car to lurch forward and cause the collision. I cannot exclude this as a cogent explanation for what occurred. The presence of the oil and the effect of that oil on braking manoeuvres in my view was unforeseen and unknown to the sergeant on the evidence: [beforeme. I find on the evidence this to be an operative and effective cause mf this particular accident. In short, I cannot be satisfied that the damage to: ithe vehicle was caused by. the negligence of the member which is an element t@ be proved before the offence against paragraph 10(c) of the Regulations is: established. I find Sergeant Greaves not guilty of the disciplimary offence charged. _ I order that the Commissioner pay the costs of the: member relating to these proceedings. The quantum of these costs are to be agmeed between the parties. Failing such an agreement I grant leave for the matter to be re-listed before me. ILL, 'S.M. 7 February, 2985 (Delivered orally on BO August, 1984)