IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: AND: REASONS FOR DECISION 10 JULY 1985 [v5] AFPDT 9° No. 1 of 1985 SENIOR CONSTABLE NIGEL JAMES PRICE Appellant THE COMMISSIONER OF POLICE Respondent KELLY J - President By notification of institution of proceedings dated 28 October 1984 the Commissioner charged Senior Constable Nigel James Price (Constable price) with an offence against paragraph 18(1)(f) of the Australian Federal Police (Discipline) Regulations (the Regulations) in that on or about 19 April 1984 at Canberra in the Australian Capital Territory he provided Robyn Keryl Beachley, a member of the Australian 'Federal Police then undergoing' recruitment training, with specific information relating to the content of an examination paper, intending that that information should be of assistance to the said Robyn Keryl Beachley and others who were to undertake the said examination and that thereby Constable Price acted in a manner that' was prejudicial to the good order and discipline of the Australian Federal Police. Within 28 days of service of the notification upon him Constable Price responded in writing admitting the truth of the matters alleged. With that admission he included material for consideration by. the Commissioner on the question of the appropriate penalty. By a notice dated 18 December 1984 the Commissioner determined that Constable Price was guilty of the disciplinary offence alleged. This determination appears to have taken place after a hearing on 17 December 1984 during which Constable Price made statements in person to the Commissioner. Also on 18 December 1984 the Commissioner gave Constable price notice under Regulation 22(3) of the Regulations that he proposed to dismiss Constable Price from -2- the Australian Federal Police but by that notice, as he was required to do, invited Constable Price to show cause why that penalty should not be imposed upon him. Constable Price. responded promptly, placing before the Commissioner a substantial amount of material to which I will refer in due course. On 28 December 1984, having taken into account the material in the statement delivered by Constable price following the invitation to show cause, the Commissioner gave a further notice under Regulation 22(3) that he proposed by way of penalty to reduce Constable Price in rank from the grade of Senior Constable within the rank of Constable to the grade of Constable within the rank of Constable. He again invited Constable Price to deliver any written statement he might wish to make showing cause why that penalty should not be imposed. Again Constable Price responded. On 8 January 1985 the Commissioner imposed the penalty of reduction in rank from the grade of Senior Constable within the rank of Constable to the grade of Constable within the rank of Constable, that being a penalty provided for by paragraph 22(1)(e)(i) of the Regulations. He fixed 13 February 1985 as the date upon which the penalty was to come into effect. With the notice which imposed the penalty he also furnished a notice headed:- "Notice Pursuant to Paragraph s.69(1)(a) of the Complaints (Australian Federal Police) Act 1981 - Commissioner's Finding - Reasons For His Finding - Penalty Imposed." -3- Constable price has appealed to the Tribunal on the grounds that the penalty imposed by the Commissioner is excessive in all the circumstances and that his decision took into account irrelevant matters and failed sufficiently to take into account relevant matters. The imposition of the penalty was suspended pending disposition of the appeal. Constable Price was born on 27 February 1950. On 26 October 1970 he joined the Australian Capital Territory Police Force. For nearly 12 years after completion of his recruit training he served in a variety of postings gaining wide experience. His appointment to the Australian Capital Territory Police Force was confirmed on 26 October 1971. He was promoted to First Constable on 26 October 1975 and to Senior Constable on 26 October 1977 and had been selected for promotion to Sergeant on 20 September 1984. He had qualified for promotion to Sergeant in 1978 and has acted since for much of the time in the rank of Sergeant. On one occasion he relieved in a Senior Sergeant's posting for three weeks. Constable Price completed also a supervision and human relations course, a Sergeants' in-service training course in 1978 and, in 1982, a methods of instruction course which qualified him as an instructor. In January 1983 he was posted to the Australian Federal Police College at Weston as an _ instructor. Subsequently he was appointed a Senior Instructor. In that capacity he seems to have borne a heavy workload. This -4- appears from the material placed by him before' the Commissioner, material the accuracy of which is not challenged. A statement of facts which was prepared by Inspector Butler and became Exhibit "K" was, subject to one minor point, accepted by counsel for Constable Price as an agreed statement of facts and I use it as the basis for the following findings. The Recruit Training Branch of the Australian Federal Police trained recruits in courses extending over 20 weeks, Examinations to assess the progress and suitability of recruits were held at the end of the fifth, tenth and fifteenth weeks and a series of final examinations were held in the nineteenth and twentieth weeks of the course. On 16 January 1984 150 recruits commenced their training. They were divided into five courses each of 30 members. A Senior Instructor and two Instructors were allocated to each course. The courses ran in parallel and the same examinations were administered to all recruits. Constable price was originally appointed as_ Senior Instructor of Course No.3/84. Subsequently administrative changes made to the rank structure at the College resulted in Constable Price's being transferred to Course No.2/84 as a 'Senior Instructor. After some four weeks with Course No. 2/84 he was transferred, again because of administrative problems, to Course No. 1/84 but, although allocated to it, never, as he told Senior Sergeant Butler, now Inspector Butler, "got to the classroom". I accept that the several -5- transfers imposed upon him a burden beyond what he might normally have been expected to bear and that he approached the Officer-in-Charge at the College to inform him that he was having difficulty coping with the changes. The approach yielded no fruit although he received a sympathetic hearing. On 3 April 1984 Senior Sergeant East commenced duties as the Senior Instructor of Recruit Training Course No.3/84. On taking up those duties he found that the examination results obtained by all members of that course 'appeared to be above the norm established by the other four courses, Sergeant East subsequently administered two non-assessable tests to the members of Course No. 3/84. Only eight of the 30 members achieved a pass mark in one of those tests and only three in the other. Sergeant East became concerned at the variation. Senior Constables Davidson and Hall, Instructors on Course No. 3/84, formed the opinion that there had been a leak of information concerning the examinations. Before the week 15 examination was administered to all courses on Thursday, 26 April 1984, Recruit Constable Dwyer approached one of her Course Instructors, Senior Constable Small, and handed an envelope to him. Acting independently, Recruit Constable Gritsch handed an envelope to one of his Course Instructors, Senior Constable Donovan, with a request that he not open it until after the examination had taken place. Senior Constable small handed the envelope he had been given to Sergeant Kendall in Recruit Constable Dwyer's presence. When opened, the ~6- envelope was found to contain a piece of paper on which were written five topics including numbers of sections of various Acts. Sergeant Kendall recognized the topics as resembling strongly those upon which the questions in the week 15 examination had been set. Recruit Constable Dwyer said that she had received the information written on the paper from Recruit Constable Swindells of Recruit Training Course No. 3/84. After the examination had taken place, Senior Constable Donovan was approached by Sergeants East and Kendall. He then opened the envelope which had been given him by Recruit Constable Gritsch. It contained a card on which were written a number of topics and section numbers. The topics and section numbers corresponded generally with the topics the subjects of the week 15 examination. Senior Sergeant East then informed Acting Inspector Royle of what had taken place. Inspector Royle conducted a preliminary investigation and _ interviewed Recruit Constables Swindells, Beachley and Churchill. Recruit Constable Beachley was treasurer and = Recruit Constable Churchill President of Course No. 3/84. Before the week 15 examination was held Recruit Constable Beachley, as class treasurer, approached Senior Constable Price to give him a Course "T" shirt. Constable Price handed her a piece of paper and said at the same time, "I think you might need this the way you've all been going in your weekly exams". The information was relayed to other members of the course. Recruit Constable Beachley disposed of the piece of paper. -7- Recruit Constable Swindells said -he came by the information before the examination either from Recruit Constable Beachley or Recruit Constable Churchill. He passed the information to Recruit Constable Strong on the evening of Tuesday, 24 April 1984. Recruit Constable Strong stated that when she received the information concerning the examination from Recruit Constable Swindells she took it down in shorthand and then told Recruit Constable Dwyer what she had been told. Recruit Constable Dwyer noted the information given her by Recruit Constable Strong and subsequently informed other members of her course, NO. 2/84. She then decided that the practice was unfair and passed the envelope containing the information to Senior Constable Small. Recruit Constables Elliot and Gill apparently got the information concerning the examination from Recruit Constable Wilson who seems to have passed it to Recruit Constable Gritsch. Gritsch noted the information on the card which he later sealed in the envelope he handed to Senior Constable Donovan. Constable Price was interviewed by Inspector Butler and Sergeant Bailey, then Senior Sergeant Butler and Detective Senior Constable Bailey. The interview was extensive. Constable Price agreed that, as he had stated in an earlier report he had been required to furnish, he used supply students before an examination either in writing or in discussion with a list of subjects upon which they might possibly be examined. He agreed that the list usually consisted of about 12 subjects, the examination usually consisting of six questions. He assumed that in accordance with his normal practice he would have given a written list of possible subjects to members of Course No. 3/84 before the week 5 and week 10 examinations. He had in the report to which I have just referred stated that he had made an error in judgment in making available the list of subjects which were in fact those of the week 15 examination. He elaborated on this during the interview by saying that the error was that he had given the students "the exact areas from where the questions in the examination would come from". He agreed that he had given the list to Recruit Constable Beachley. The significance of her having been the recipient lies, I think, in the fact that it was plainly given to her in a representative capacity. I am satisfied that Constable price was particularly concerned with the results obtained by Course No.3/84. He was asked to comment on the allegation that he had said when handing the list to Recruit Constable Beachley "I think you might need this the way you've all been going in your weekly exams". He replied, "Possibly, I'd been watching their examination results and their attitude generally and it was going downhill". . I am = not_. satisfied that Constable price appreciated to the full the nature of the breach of which he was guilty at the time when he gave the information to Recruit Constable Beachley. Admittedly he agreed during the interview with Senior Sergeant Butler that he had made an ~9- error of judgment, that what he had done was wrong and that it gave an unfair advantage to the members of Course No. 3/84 but he seems not to have appreciated to the full the dishonesty of his action or the bad example it would be likely to furnish the recruits on the course. I am satisfied that it was the accepted custom at the Australian Federal Police College at Weston that instructors should indicate generally to students a number of topics upon some of which they might expect to be tested at forthcoming examinations. As Inspector Butler put it:- "Across a- twenty week course there | are numerous topics presented to a student and for forthcoming examinations it ... is humanly impossible for them to study and be familiar with all areas from which the examination could be drawn; hence it 'was generally a practice to guide the students to areas from which the examination is likely to come or the questions for the examination are likely to come. eee If there [were] approximately six or seven areas in an examination, then the students would generally be told to look in ten or twelve different areas. And they were always general or should have been general in their nature and not specific." : In cross-examination he was asked:- "would it be correct to say that the gravamen of what he did would be this, that whereas it had been practice to inform students, in one way or another, prior to examination of say, 10 to 12 topics on which they might be examined, he in week 15, or for the week 15 examination, informed the class which he had had, from which he had been moved, of six topics?" He replied, "Yes, that is what my inquiries led me to believe." -10- It seems clear that, given that it was accepted that students might be directed generally to topics, it was reasonably probable that they, bearing in mind the instruction that had been given them, would guess accurately enough the broad statutory basis of the topics upon which they were likely to be examined. But the accepted custom did not, in my opinion, warrant the giving of specifically limited information to candidates for the examination. Two documents were tendered in evidence and together became Exhibit "Pp". Neither was the piece of paper given to Recruit Constable Beachley or a direct copy of it. They represented the understanding of other students of the information given her. One appears to have been the list prepared by Recruit Constable Gritsch, the other that prepared by Recruit Constable Dwyer although it may have been prepared by somebody else from the same information. The list apparently prepared by Recruit Constable Gritsch is as follows:- "Section 63 & 64 A.F.P. Act Section 4, 7, 25, 26 Crimes (Aircraft) Act Section 22 Public Order Act (Full & Explain) Juveniles - Define Juveniles - Define young Person - Questioning Techniques Public Order Act - Define Protected Premises - " - Protected Person Crimes (Aircraft) Act - Define Prescribed Flight - Define Crew Member" The other list headed "Questions" was as follows:- "1. Crimes (Aircraft) Act especially sections 6, 7 & 21 2. Powers of Entry 3. AFP Act 8s63 & 864 -11- 4. General Instruction 13. Children & young Persons especially - definitions (Senior member, child, young person) - who should be present at interview 5. Public Order (Protection of Persons & Property) Act 1971 especially definitions - assembly - protected person - protected premises" The first question on the week 15 examination concerned the circumstances which must be considered prior to the arrest of a child or young person. The second was designed to test the candidates' knowledge of the Public Order (Protection of Persons & Property) Act 1971 in the context of a demonstration outside an Embassy. The third was concerned with a constable's powers of entry onto private premises. The fourth dealt specifically with ss.63 and 64 of the Australian Federal Police Act 1979. The fifth dealt with the problem of theft from a crew member on board an aircraft in flight. Although there are discrepancies between the two lists making up Exhibit "p", it is clear that anyone in possession of either would, with ordinary capacity and a minimum of study, have readily and creditably passed the examination set. In those circumstances the examination would not have been a true test and in the result recruits may have qualified as police officers trained to the appropriate degree when in fact they were not. That seems to me to be a very serious consideration. In the notice furnished purportedly pursuant to paragraph 69(1)(a) of the Complaints (Australian Federal -12- Police) Act 1981 (the Act), the Commissioner gave reasons for the penalty which he imposed. I incline to the view (I have not had the matter debated before me) that s.69(1) of the Act does not require the Commissioner in circumstances such as the present to give reasons for the penalty which he imposes. But the reasons he gave have been most helpful and it would seem most desirable as a matter of practice that he continue to give reasons for penalties he imposes other than under s.67(6) of the Act. The Commissioner stated that he took into account the following matters on the question of penalty:- a) Constable price's oral statement made at the hearing (sc. on 17 December 1984); b) an oral statement made by Inspector E. Cox at the hearing; c) a written statement made by Constable Price in respect to the charge; d) Constable Price's service record including previous disciplinary matters; e) Constable Price's role, and accountability in his performance of duty as an Instructor and Senior Instructor of recruits; f) the circumstances surrounding the offence; and g) the seriousness of the offence. On 21 December 1984, following the initial hearing on 17 December 1984 the Commissioner received from Constable Price the written statement providing reasons why the penalty of dismissal should not be imposed. The statement was accompanied by the substantial amount of Material to ia -13- which I have referred above and which consisted of a number of references from members of the Australian Federal Police, from a Minister of religion and from an executive officer of the Australian Federal Police Association. The Commissioner thereafter took into account Constable Price's service record and the references and noted particularly that Constable Price had taken positive action to overcome successfully a difficulty he had temporarily had with alcohol. The Commissioner also took into account the further statement received from Constable price giving reasons why he should not be reduced in rank. As well, he took into account Constable Price's 14 years' police experience and his creditable performance during that period. Nevertheless the Commissioner regarded the commission of the offence as a serious matter. He said, inter alia:- "The role of instructional staff in recruit training is crucial to the setting of principles and standards against which Members can be guided throughout their career in a Police Force concerned with integrity and accountability to the people it serves. You admitted having heard me address recruits on the necessity for integrity and ethical conduct in the discharge of their duties as members of the Australian Federal Police. Your action in providing a class of recruits over which you had no responsibility with specific information relating to the content of an assessable examination was clearly dishonest and subversive to the ideals and objectives of recruit training and of the standards of the Australian Federal Police. I. am aware of the accepted practice of Instructors conducting revision and coaching x -14- their classes, on subjects (in general terms) likely to be encountered in a_ forthcoming examination. Your actions in divulging specific information on the content of an examination exceeded by far, this accepted practice and was clearly a dishonest act. Such dishonest conduct is seriously prejudicial to the good order and discipline of the Australian Federal Police and therefore warrants a severe penalty. I accept that you were experiencing a degree of stress due to work pressures and difficulty in coping with your duties leading up to the time of this offence. I also accept that you, as a Senior Instructor, established a close relationship with the class concerned in this matter. Whilst such matters may explain your actions in committing this offence, I do not accept them as mitigating circumstances when the issue of integrity is involved." Giving evidence before me Inspector Butler was asked whether there were some problems in respect of running parallel courses, five courses all being taught by different instructors. He replied:- "I can only speak from my experience in this matter, but I believe that they are fraught with danger. «+. petty jealousies arise between the courses, between the course instructors and ... I think it goes beyond healthy competition to become an unhealthy competition between the courses, to the extent that these jealousies arise and this guarded or close-knit community develops within each course." As a result of his investigations he considered the situation just described to be one of the factors contributing to the offence committed by Constable Price. He went on to outline the restructuring of the course at the College. Courses are now controlled by a _ Course Co-ordinator and a faculty system is operating designed to ensure that eventually no instructor will be concerned specifically with any one course. -15- A report by Dr Knox, a Consultant Psychiatrist, was tendered in evidence on behalf of Constable Price. It was not suggested that I should not accept any part of that report nor was it suggested that I should not accept any part of the material placed before me. That material amply demonstrates that Constable Price was under a good deal of pressure up to the time of the commission of the disciplinary offence and had been under pressure for some years. Part of Dr Knox's conclusion read as follows:- "Under mounting pressure during 1984 I believe that your client's trait of arrogance led him to believe that he could take matters into his own hands. I believe he was genuinely motivated in his' behaviour' to assist his students. ee. Senior Constable price found himself under extra financial stress in the early months of 1984. In summary I believe your client's poor judgment came about under exceptional circumstances. I believe that certain traits in your client's make-up rendered him vulnerable to the stresses he was experiencing at that time. your client became overly close to his first group of students and over-identified many of his own difficulties with this group. Just as he was in need of support himself he believed that his students would not cope without additional help. While your client was a conscientious and energetic teacher, I believe he lacked the necessary maturity during 1984 to exercise better judgment in the difficult circumstances he found himself in at that time." From the substantial amount of material placed before me I am satisfied that Constable Price had indeed performed creditably during his Police service and was -16- highly regarded by his colleagues whether superior to him in rank or inferior. I accept Constable Price's account of the difficulties under which he laboured and of the strain which his duties at the Australian Federal Police College imposed upon him. The only matters which the Commissioner took into account which might conceivably be held to be irrelevant were the disciplinary matters referred to by Constable Price in his memorandum to the Commissioner dated 19 December 1984, part of Exhibit "E". In 1974 he was apparently dealt with for failure to keep a pistol locked in a place of security. He received counselling. In 1976 he was reprimanded in respect of an assault on his wife. In 1977 he was charged with having secondary employment. In 1981 he received counselling in respect of an incident on 15 November 1981. No particulars sufficient to identify the nature of the incident were given. He appears not to have been charged with a disciplinary offence in relation to it, "but an indication was given him that a repetition of his behaviour would result in disciplinary action. In January 1983 he received counselling in respect of the allegedly excessive time he was spending at a particular tavern. Constable Price pointed out that no criminal behaviour or breach of discipline was alleged against him and that the Matter related to his activities in 1981, seemingly shortly before he changed his attitude to alcohol after taking appropriate treatment for his alcohol problem. oe -17- I note that in a document, Exhibit "L", dated 14 February 1984 signed by A/Assistant Commissioner Fletcher only three prior disciplinary matters were mentioned. Those were as follows:- "7.2.74 Counselled by Sergeant I/C Bird for failure to keep pistol locked away in a place of security. 11.1.77 Reduced in rate of salary from that of a Constable I/C in his 2nd year to a Constable I/C in his 1st year of service on that rank, effective 11.1.77 to 31.8.77. ("engage in remunerative employment being employment other than in connection with duties as a member of the police Force", Commissioner Wilson). 25.1.83 Counselled by Chief Superintendent Bird, relating to allegations about his activities at a Belconnen Tavern." Although the Commissioner said that he took into account Constable price's service record including his previous disciplinary matters, there is nothing in his reasons for the penalty which he imposed which indicates to me that he took undue account of these matters. Similarly, when the Commissioner expressed the view that Constable Price's conduct in giving the information he did to Recruit Constable Beachley was dishonest, he could not be said, in my opinion, to have taken into account an irrelevant Matter. The conduct was dishonest as giving an unfair advantage to a section of the recruits in training. Whether Constable Price appreciated the full extent of the dishonesty is another matter. viewed objectively the conduct was dishonest and I have no doubt that although Constable Price may not have appreciated to the full that it was dishonest he nevertheless knew that it was wrong. -18- In my view two matters wrestle for supremacy in this case. The first is the weight that should be accorded to Constable Price's creditable service record. The second is the right of the 'Commissioner to insist that members of the Australian Federal Police conduct themselves with integrity and ethically in the discharge of their duties. That right must be upheld. Where breaches of discipline are involved it must be upheld by penalties which are appropriate in all the circumstances, In this case the penalty must be severe enough not only to deter others who might be minded to engage in similar conduct but also to show newly inducted recruits of the Australian Federal Police that any breach of duty demonstrating lack of integrity in the discharge of their duties will be dealt with severely. Recruit Constable Dwyer correctly appreciated that Constable Price's conduct was unfair and took appropriate action. She can hardly have been alone in that appreciation. If an experienced police officer is seen by recruits to be dealt with lightly for conduct demonstrating lack of integrity they can hardly be blamed for thinking that such conduct is not so bad after all despite what the Commissioner might say in his addresses to them. A light punishment would not operate as a significant deterrent to them. They might be induced to believe that such conduct in their police work would be either passed over or dealt with very leniently. Such an attitude is not, I think, to be -19- encouraged by any penalties which the Commissioner or this Tribunal, either in the exercise of its original punitive jurisdiction or on appeal, might impose. There are, however, two matters which have been placed before me which do not appear to have been put to the Commissioner. The first relates to what appears to have been some shortcomings then existing in the course system which previously operated in the College at Weston. This, according to the evidence of Inspector Butler, has now largely been corrected. It does not excuse but serves to some degree to explain what Constable Price did. The second matter is that I have had the advantage of the report furnished by Dr Knox on Constable Price. It does not, of course, suggest that he is psychiatrically disturbed in any way but it explores Constable Price's psychological state and offers a credible explanation for his action. I do not think that the fine which I am empowered to impose by the Regulations (a fine not exceeding an amount equal to five days salary) is an adequate penalty in all the circumstances of the case. It would not, in my opinion, operate as a sufficient deterrent. There can be no suggestion that the penalty of dismissal is appropriate. The alternatives available to me are reduction in rank to the grade of First Constable within the rank of Constable or reduction in rank to the grade of Constable within the rank of Constable, the latter being, of course, the penalty which the Commissioner imposed. ae ee ate ee | -20- I have given anxious consideration to which of those two penalties is the appropriate one. In the end I have concluded that Constable Price ought to be reduced in rank to the grade of First Constable within the rank of Constable. This is a very serious penalty involving, as it does, loss of pay and loss of opportunities for promotion together with loss of seniority. I have for all practical purposes disregarded the prior disciplinary matters. But I am satisfied that what Constable Price did was very wrong and that it was perceived by the intended beneficiaries of his action to be wrong. I instance the view expressed by Recruit Constable Dwyer. The appeal is allowed. Instead of the penalty imposed by the Commissioner I propose to order that Constable Price be reduced in rank to the grade of First Constable within the rank of Constable. I will hear argument as to the date when that order should take effect and as to its effect on Constable Price's seniority. { I certify that this and the 4 4 ing pa ; "1 D f the ; preceding pages are a true copy ° Reasons for herein of his Honour , Mr. Justice Kelly ! a D> i i | " Associate | Dated: lo July IFES |