aS J85fp06 (inéoen plete p.lo+) IN THE FEDERAL POLICE ) ) No. 9 of 1984 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SENIOR CONSTABLE GEORGE FREDERICK MICOLICH Member: Mr B.R. Maguire, Q.C. Date: 13 March 1985 DECISION THE TRIBUNAL FINDS THAT: 1) George Frederick MICOLICH, a member of the Australian Federal Police, is not guilty of a disciplinary offence specified in paragraph 18(1)(€a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely paragraph 5(a), in that at Sydney in the State of New South Wales on 30 September 1983 he discharged a firearm contrary to the provisions of paragraph 3 of Administrative Circular No.170 dated 17 February 1983. } 2) George Frederick MICOLICH, a member of the Australian Federal Police, is not guilty of a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely paragraph 5(a), in that at Sydney in the State of New South Wales on 30 September 1983, he handled a firearm unnecessarily in the presence of others when not under proper instructions or in the execution of duty, contrary to the provisions of sub-paragraph 17(c) of Administrative Circular No.170 dated 17 February 1983. 3) George Frederick MICOLICH, a member of the Australian Federal Police, is not guilty of a disciplinary offence specified in paragraph 18(1)(c) of the sreh2 4) 5) ram Australian Federal Police (Discipline) Regulations, namely that he was negligent in the discharge of his duties in that, at Sydney in the State of New South Wales on 30 September 1983, he discharged a firearm in such a manner and in such circumstances that physical injury was inflicted upon Constable Elizabeth Jane HANSON, a member of the Australian Federal Police. George Frederick MICOLICH, a member of the Australian Federal Police, is not guilty of a disciplinary offence specified in paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, namely that he was negligent in the discharge of his duties in that, at Sydney in the State of New South Wales on 30 September 1983 he, being the shift supervisor, failed promptly to notify the Officer in Charge of his Region of the physical injury inflicted upon Constable Elizabeth Jane HANSON, a member of the Australian Federal Police. George Frederick MICOLICH, a member of the Australian Federal Police, is not guilty of a disciplinary offence specified in paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, namely that he was negligent in the discharge of his duties in that, at Sydney in the State of New South Wales on 30 September 1983 he, being the shift supervisor, failed to provide adequate supervision of the members under his control and direction, to wit, he failed to ensure that the members of the two mobile patrols under his control and direction were not at the Reserve Office having a meal at the same time. THE TRIBUNAL ORDERS THAT:~- 1) 2) The costs of the proceedings incurred by George Frederick MICOLICH be paid by the Commonwealth. There be Liberty to apply as to the amount of those costs. B.R. MAGUIREG @.C. Member IN THE FEDERAL POLICE ) ) No. 9 of 1984 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SENIOR CONSTABLE GEORGE FREDERICK MICOLICH REASONS FOR DECISION MR. B.R.~ MAGUIRE, Q.C. On 30 September 1983 Senior Constable George Frederick Micolich ('the respondent') was on duty in Australian Federal Police premises at Sydney Airport. He was at the time filling the role of Acting Sergeant and he was in charge of four other members who, with him, constituted the night shift at the Airport Station. The following facts are not in issue: 4d. ALL five members of the shift were taking a meal break together in a room known as the 'reserve office'. ea The respondent was armed with a fully loaded Smith and Wesson -38 revolver, the property of the Australian Federal Police. Sis There was some discussion in the small hours between the respondent and Probationary (as she then was) Constable Elizabeth Jane Hansen about blank ammunition. 4. The respondent left the room, fully unloaded his revolver and returned to the room with two blank -38 rounds which he had obtained from his locker elsewhere in the building. Sis The respondent loaded one blank round into the revolver. He pulled the trigger at least once. Oy As a result of the respondent's actions a blank cartridge discharged. on Material from the cartridge struck Hansen in the face causing her superficial injuries from which she has now made a complete recovery. 8. The respondent arranged for Hansen's attendance at the St George Hospital. Upon her being brought back from the hospital to the Station he arranged for her to be driven to her home. Fis Towards the end of the shift, viz. at 5.50a.m. (transcript 191.8) the respondent telephoned his immediate superior, Acting Inspector Halmarick, at the Latter's home. Os The respondent gave Mr Halmarick a short but frank account of what had happened. Mr Halmarick (transcript 218.4) had the feeling that there was no concealment of anything. sxonetl S 2. Tt The respondent is a man of excellent character. A number of witnesses, some called by Counsel for the Commissioner to support the Commissioner's case and some called by Counsel for the respondent gave evidence as to his character. See especially Senior Sergeant Brian Bradley (transcript 65-69 and Exhibit 1). He says (in Exhibit 1): He is most conscious of the place he holds in society, and endeavours consistently to assist, to the best of his ability, any member of the public in need of such assistance. He also aids the younger members in their induction, and familiarisation, while instilling in them confidence in, and knowledge of, their work. He exhibits enthusiasm in his duties, and shows great interest in his work, being generally co-operative at all levels, and this attitude is readily reflected in his work output, in which he is continually bringing offenders before the Courts, quite successfully. On 28 August 1984 the Commissioner lodged with the Tribunal five Notifications of the Institution of Proceedings against the respondent. At the same time he filed, in respect of each charge, a determination under the Complaints (Australian Federal Police) Act ('the Complaints Act') section 67(2). The proceedings thereby came before the Tribunal and the respondent was given no opportunity to elect to be tried by the Commissioner. I simply state those facts as a matter of history. The Commissioner's exercise of his powers under section 67(2) is entirely proper. The five charges came before the Tribunal in Sydney on 23, 24 and 25 October 1984 and again on 16 and 17 January 1985. The hearing concluded on 5 February 1985 when I reserved my decision. ecmeetl SD On the lLast-mentioned date two of the charges were withdrawn by the Commissioner. However, I am required by the Complaints Act section 67(1) to determine them. Charge No. 6/8485 of failing promptly to notify the officer in charge of his region of the injury to Hansen is dismissed. Charge No. 7/8485, as amended at transcript 498 to read in accordance with the words set out at transcript 494, of failing to ensure that at all times at least one mobile patrol was engaged in patrol duties is dismissed. That leaves three charges for my determination. I shall deal with them in numerical order. Charge No.3/8485 alleges a disciplinary offence the gravamen of which is alleged to be his disobedience of Paragraph 3 of Administrative Circular No.170 in that his discharge of the firearm, without anything more, is said to constitute a breach of the Circular. Administrative Circular No.170 was before the Tribunal. Paragraph 3 reads as follows: POWER TO DISCHARGE IN EXECUTION OF DUTY Bi Members may discharge their firearms in the execution of their duty under the following circumstances: (a) Self-defence, including the protection of members of the community; and (b) the arrest of felons who endeavour to avoid apprehension. st el4 hes Plainly the discharge of the blank round in question is not expressly authorized by Paragraph 3. I fail to understand how that circumstance makes the discharge in question a disobedience of Paragraph 3. One can envisage many circumstances in which a policeman would be called upon to discharge his firearm which circumstances are not referred to in Paragraph 3 or, indeed, at all in Administrative Circular No.170. For example, General Instruction 4 clearly authorizes the destruction of animals at airports and the destruction of dogs in the Australian Capital Territory and expressly authorizes the use of firearms. I note in passing that Administrative Circular No.170 makes no reference to blank rounds. It seems to me that it does not constitute a code which authorizes the discharge of firearms in certain circumstancs and forbids their discharge in all other circumstances. I cannot see how what the respondent did amounts to the offence alleged. Charge No.3/8485 is dismissed. Charge No.4/8485 alleges a disciplinary offence the gravamen of which is alleged to be his disobedience of sub-paragraph 19(C) of Administrative Circular No. 170 in that he handled a firearm unnecessarily in the presence of other when not under proper instructions or in the execution of duty. As I understand the terms of this charge, the Tribunal is concerned here with the mere handling of the weapon and not (as it reseed 5. will be in relation to charge No.5/8485) with the way in which it was handled nor with the consequences that flowed from the handling. It is helpful to look firstly at the way in which the respondent seeks to justify the handling. A Little over 24 hours after the event he was interviewed by Detective Inspector Casey and that interview was recorded with the aid of a typewriter. The record became part of Exhibit B. Answer 30 reads in part: "During this time ... Hansen mentioned ... that she had seen the blanks used but didn't know how they worked or what they looked like ... I think I then said I'v got some in my locker. I'Llt show you how they work and what they look Like ..." Answer 73 reads in part: "I believe that as Senior officer in charge of a shift when a junior probationary officer shows lack of knowledge or experience it is my duty to instruct the Constable or advise her accordingly." He was further interviewed by Dectective Acting Chief Inspector Downing on 23 November 1983 and that interview also was recorded with the aid of a ypewriter. That record also became part of Exhibit B. Answer 47 reads as follows: "My intention was to demonstrate the affects of a blank round to Constable Hansen." Asked Cin question 48) about Administrative Circular No.170 he said that he was familiar with General Order 10 (its predecessor). He said that the handling was not unnecessary and that he « aay 6. had General Order 10 in mind at the time. In answer 49 he referred to previous indoor discharge of blank cartridges during job training. He gave sworn evidence of this at transcript 270. When the respondent gave evidence before the Tribunal he maintained the same attitude to what he had done. He said (at transtript 279.1) that he was conducting a demonstration for the benefit of Hansen. Constable Hansen supports (in part) the factual basis of the Line of defence set out above. In her statement made the same day which became part of Exhibit B she refers to a conversation between the two of them about blanks and says that the respondent said "I'll show you one if you want". In her sworn evidence (at transcript 34.4) she said that she could not remember the exact conversation. Much was sought to be made by Counsel for the Commissioner (at transcript 466 et seq.) of this discrepancy. I attach no significance to it. Constable Brown in her statement of 1 October 1983 (part of Exhibit B) gives an account of a converesation about blanks between the respondent and Hansen. Constable Glanville in his statement of 30 September 1983 refers to the same conversation. Under cross-examination before the Tribunal (transcript 183.2) he said "I cannot ewok? rar remember specific conversation. I new what they were talking about". Constable Watson in his statement of 1 October 1983 also refers to this conversation between Hansen and the respondent. General Instruction 24, "Duties of Police", deals with a whole range of matters. Paragraph 28 lays upon Sergeants a heavy responsibility to conduct on-the-job training. The Australian Federal Police is an armed Force and a disciplined Force. To achieve and maintain high degrees of skill and efficiency in the various aspects of police work its members must engage in a great deal of training, both in separate training programmes and on-the-job training. The evidence of the respondent that blank rounds were sometimes discharged indoors in this building in the course of training is supported by the evidence of First Constable Caghlin at transcript 371. Nowhere is it contradicted. I viewed the building with both Counsel on 23 October 1984. It seemed to me that it was probably a veteran of World War II, which had been built on an austerity budget as "temporary accommodation" and which had somehow managed to survive to the present time. It and its fittings and furnishings fall well below the standards that employees expect their employers to provide in the 1980's. There is certainly nothing in the nature and finish of the building and its contents that would inhibit an ordinarily as at8 8. sensitive policeman from producing and handling his firearm therein. I accept completely that what the respondent was doing when he produced the firearm in his hand in the office on the occasion in question was done in conformity with his obligations under Paragraph 28. This charge is dismissed. Finally, Charge No.5/8485 alleges that he was negligent in that he discharged a firearm in such a manner and in such circumstances that physical injury was inflicted upon Hansen. This charge is laid under Paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations. The evidence in relation to this charge throws up issues of fact of a dramatic kind. On the evidence there are two broad possibilities: A. That the respondent was holding the weapon so that it was pointed at Hansen's face, that he discharged it while it was so pointed and that wadding and burning powder travelled down the barrel and struck her on the face; and Bis that the respondent carefully aimed the weapon so that it was pointed at the floor and not at Hansen, that it discharged by reason of a "hang-fire" some Little time after he first pulled the trigger and, as he was pulling the trigger again a number of times during the delay occasioned by the hang-fjire sere D) 9. when it did discharge the cylinder was in motion between one indexed position and another which caused the wadding and powder to leave the weapon at right angles to the barrel and thereby strike Hansen in the face. Counsel have debated the standard of proof applicable at some length. I have been referred to Briginshaw -v- Briginshaw (1938) 60 C.L.R. 336 and to Hardcastle -v- Commissioner of Australian Federal Police and Anor. (1984) 53 A.L-R. 593. As I see it, if the respondent behaved as is alleged by the Commissioner, his behaviour would amount to criminal conduct. One can scarcely imagine a more serious allegation which did not lead to criminal proceedings. It seems to me that in order to find such a serious allegation proved I would need to quote "feel an actual persuasion of its occurrence". This is the test laid down by Dixon J. (as he then was) in Briginshaw at page 361. His Honour counsels against a mere mechanical comparison of probabilities independently of any belief in (the allegation's) reality. The matter was investigated by Sergeant I.H. Prior of the Scientific Branch stationed at Canberra. Sergeant Prior has considerable experience in ballistics. He gave evidence before the Tribunal. In his report of 17 October 1983 (part of Exhibit B) he concluded that Hansen was fired upon directly towards the face from a distance between .8 a way 10 10. and 1.5 metres while the firearm was not in the cylinder central locking position. He gave his reasons for having formed that opinion and those reasons are cogent. He was cross-examined and not moved from that position. On the other hand the Tribunal had before it a great body of eye-witness evidence which contradicted Sergeant Prior's opinion. The respondent, in his first record of interview, in Answer 30 said in part: "I then pointed the pistol away from Constable Hansen towards my left and towards the ground..." In Answer 57 he describes a flash coming out of the side of the pistol. Before the Tribunal he swore (transcript 257.2) "I definitely did not aim at her face". First Constable Brown in her statement of 1 October 1983 said in part: --- Micolich was holding the gun at an angle of about 45 degrees to the floor, pointing down and in a direction to the front of Constable Hansen ... In her statements and evidence she made no reference to any flash from the side of the weapon, nor was she cross- examined about such. Constable Glanville in his statement of 30 September 1983 said in part: "l.. Micolich was holding the revolver at about an angle of 30 degrees to the ground, pointing downwards and towards the north-western corner of the room and in a direction to the front of Constable Hansen's sitting position ... I saw o snl VA ade a prominent flash of Light from the barrel ..." He made no reference to any flash from the side of the weapon, nor was he cross-examined about such. A reading of his evidence makes it very plain that he could see that the barrel was not pointing at Hansen. He made it clear at transcript 224.8 that he would have intervened physically had it been otherwise. First Constable Watson in his statement of 1 October 1983 said in part: "He was holding the gun ... at an angle of about 35 to 40 degrees to the ground pointing down and in a direction to the front of Constable Hansen's position saa" At transcript 104 he told the Tribunal that he saw nothing project from the gun. At transcript 109a he said that if the respondent had fired a Live round it would have missed Hansen by five feet or six feet. At transcript 118 he said that there was no possibility at all that the respondent was pointing directly at Hansen's face. Had it been otherwise he would have taken some sort of action. I am not disturbed by the fact that neither Brown, nor Glanville, nor Watson seems to have seen any flash from the side of the weapon. I am enormously impressed to note that each of them is so clear that the weapon was not pointed at Hansen's face. The hang-fire theory advanced by the respondent was put to Sergeant Prior. His evidence puts two principal obstacles in the path of its acceptance. ---/12 12. Firstly, at transcript 142.6 he admits the possibility of a hang-fire but says he has not seen one in nine years, when 500,000 rounds' for which he is responsible, are discharged annually. Against that (transcript 142.9) his experience with blank rounds is Limited. This present case is the first in which he has had to perform a detailed examination of blanks and their effect (transcript 142.9). Secondly, Sergeant Prior was clearly of the view that the hang-fire alleged could only have happened if the firing was done with the cylinder not locked into the frame (transcript 377.3). That does not accord with the respondent's description of the way he went about firing the weapon. This description is first found in Answer 30 of the Record of Interview of 1 October 1983. In Answer 19 in the Record of Interview of 23 November 1983, he speaks of closing the chamber. He then goes on to give the same account as in the previous record. He affirmed this account in his sworn evidence but, significantly, he concedes (at transcript 326d.4) "Something must have gone astray, but to the best of my ability I treated the gun as usual and it was in the correct firing position". At transcript 336 Counsel for the Commissioner suggested to the respondent that he (the respondent) and Watson had connived to concoct the evidence to be presented to their Superior officers. In a less direct way, on the same page, Counsel made similar suggestions relating to Glanville exnce LTS 13. and Brown. On the following day (at transcript 402a.7 and 403.3) Counsel submitted that the respondent had concocted his evidence and had pressured each of Watson, Glanville and Brown into concocting their evidence to match his own. Those were most unworthy submissions; they could not be supported by the evidence; and they necessarily involved the Commissioner's Counsel impugning his own witnesses who had been given no opportunity to defend themselves against these allegations. Eventually (at transcript 405) those submissions were withdrawn. The only eye-witness account which differs substantially from the respondent's account is that of Hansen. In her statement of 30 September 1983 she says in part: "He pointed the revolver in a direction to the rear of my position at a downward angle towards the floor and pulled the trigger. There was a loud bang as the weapon fired, I turned my head to my right (away from the Sergeant's position) as a reaction to the noise, and as I turned my head back to the Acting Sergeant something hit in the face ..." The latter part of the passage quoted is, of course, quite impossible. I have no hesitation in rejecting it. Constable Hansen, of course, received a very nasty shock in addition to the physical injuries. I conclude that this has had the effect of rendering her recollection unreliable. As to her account of the direction in which the weapon was pointing, I reject that too. At the same time, her evidence does support the evidence of Micolich and the others that the weapon was not pointed at her face. The cartridge case primer was found to have two mine EVE 14. indentations in it. One was off-set from the normal central position. The other was in the normal position. In his report of 17 October 1983, paragraph 2(c) Sergeant Prior expressed the opinion that the off-set indentation caused the discharge and preceded the central indentation in time. Ultimately this evidence was not challenged. I accept it. As I understand the hang-fire theory advanced, this evidence is consistent with the theory. The only other possible explanation canvassed in the evidence was the suggestion put to the respondent in cross-examination at transcript 327b. It was there suggested (transcript 327b.3) that the second indentation was deliberately caused by the respondent after the discharge of the blank round. It was further suggested (transcript 327b.7) that this was done by way of covering-up the incident. Neither the respondent nor the Tribunal was ever made aware how such a cover-up would work. These suggestions in essence amount to putting the proposition that the respondent had deliberately manufactured evidence for the purpose of advancing a case which he knew did not exist. That is a very serious allegation. There is not a shred of evidence to support it. I reject es The hang-fire theory coupled with the respondent's account of what he did necessarily involves the respondent in pulling the trigger six (or perhaps seven) times. The respondent's evidence in this regard is not totally corroborated a fa) 4 5 by the eye-witnesses. Brown, Glanville and Watson each recount several pulls of the trigger. I do not set out their evidence on this issue in detail. It is sufficient to say that their evidence varies between 3 or 4 pulls and perhaps 6. Hansen was silent on this subject in her written statement and Record of Interview. In her sworn evidence (transcript 43.7) she denied hearing any clicks. For each of these witnesses the overwhelming sound was the report of the round discharging. I attach no significance to the discrepancies in recollection on the part of Brown, Glanville and Watson and to the absence of any recollection on the part of Hansen. In the Light of all the evidence I do not feel pursuaded that the weapon was pointed at Hansen's face when discharged. The Commissioner has failed to produce in my mind a feeling of actual persuasion. I would only add that to say that is not to say that I reject Sergeant Prior's evidence or even that I have any criticisms to offer of it. That is not the end of the case. It still remains open to the Commissioner to seek to persuade me that the mere discharge in all the circumstances was negligent because of the possibility that a hang-fire may occur and produce the result that did, in fact, occur. On the evidence I hold that ahang-fire was such a remote possibility that the respondent was entitled to ignore it. I am not persuaded that he was negligent. 'This charge is dismissed. worn! 16