Sy tp 7 [1986] PFPDT & . cel . - , IN:THE FEDERAL POLICE ) No. FPDT 3 of 1985 No. FPDT 4 of 1985 ww DISCIPLINARY TRIBUNAL )- } THE COMMISSTONER OF POLICE against SERGEANT ROBERT ALEXANDER GEORGE DONALDSON THE COMMISSIONER OF POLICE against. SERGEANT GEOFFREY STEPHAN HOBART REASONS FOR DECISION MAGUIRE, Q.C. -- Member 3 April 1986 Sergeant Robert Alexander George Donaldson, a member of the Austcalian Federal Poiice, is charged with a single disciplinary offence, number 23/3485, the gravamen of which is that he was quilty of improper conduct otherwise than in an official capacity, namely that being a more senior officer he did request Senior Constable Geoffrey Stephen Hodart not to report an offence, namely a larceny at the Total Service Station, Scullin, which was known to Hobart, knowing that Hobart was required to report such an offence. When these proceedings initially came before the Tribunal on 18 June 1985 Sergeant Donaldson was represented by counsel.. He was so represented at a further directions hearing on 12 August 1985 and again on 10 December 1985. It was on that occasion, namely 10 December 1985, that the Tribunal fixed the hearing of the proceedings for Tuesday, 1 April 1986. On material that is in evidence before the Tribunal, Sergeant Donaldson continued to be represented by the solicitor whom he had initially instructed until last week. Thereafter he changed. his solicitor and instructed another. Thereafter he withdrew his instructions from that second solicitor, Mr Buxton, who, as a matter of courtesy, appeared before the Tribunal on Tuesday morning this week to inform me sy bo There is an irresistible inference that the sergeant was aware of the fixing of the nearing to commence before the Tribunal on Tuesday. In the circumstances of his failure to appear, I was asked by counsel for the Commissioner to deal with the matter ex parte, that seemed to me to be an appropriate course to take. Also listed for hearing were three charges arising generally out of the same set of circumstances, which three charges were laid against Sergeant Hobart, the person mentioned in the charge against Sergeant Donaldson. No point had ever been taken at any of the directions hearings about the proprietory or otherwise of the charges being heard. together, that is the charge against Donaldson and the charges against Hobart. When it became clear that I proposed. to deal ex parte with Donaldson,. there being no choice in the matter, he having failed to attend, Mr Purnell of counsel. for Hobart. suggested for the first time that that would not be a proper course - that it would not he proper for me to deal ex parte with Donaldson at a joint hearing with Hobart. I was not able to understand the reasons he advanced for that proposition and I rejected it. The matters therefore proceeded to be heard together. The evidence against Donaldson suggests that he in WwW 1983 was conducting a service station at Scullin in the Australian Capital Territory. There is a thin corporate veil eae over Donaldson's association with the conduct of that business in that the evidence suugests there is a company of which two relatives of his are directors. But the evidence before me, and tT refer in particular to exhibit D3 page 18.8 suggests that the real controlling interest in the business was Sergeant Donaldson. ad n December of 1983 there were employed. at the business two driveway attendants, one named Hogan whom I have not seen, and another named Dawson whom I have seen. Dawson swore that he had been hired in that business some months before December 1983 by Sergeant Donaldson and I accept that evidence. By 18 or 19 of December 1983 it had become apparent to Donaldson that. there had been one or more thefts of money from the business premises which thefts seemed likely to have been perpetrated either by Hogan or by Dawson. That, having come to- his knowledge, appealed to him as a matter fit for investigation by the Austrlian. Federal Police. The appropriate thing for him to have done was to communicate with a detective or other police officer at the local police station, namely the Belconnen police station. Donaldson did not do that. He chose instead to communicate with somebody at the Woden Valley police station which was the station at wnich he was then stationed. He made his communication directly toa senior constable of his own choosing who was his friend, senior constable now Sergeant Hobart. He informed Hobart that there were discrepancies in the takings of the business and he asked Hobart to question Dawson in relation to larcenies from those premises, exhibit D3, page 8.9. In response to that. request Constable Hobart attended on the same day at the premises of the service station business in Scullin. He attended there in police uniform. It was Donaldson's clear understanding that in requesting him so to attend that the senior constable would be involved in leaving his area. On the evidence available against Donaldson Hobart secured from. Dawson an admission of guilt, that is that he had taken from the business a total of $310. There was then, according to Donaldson's admissions made to Superintendent Stoll, further conversation between himself and Hobart which conversation included a request by Donaldson of Hobart to make no official record of the matter. That request is clearly admitted by Donaldson in exhibit D3 at page 15.8. He was asked in the course of his interrogation by Superintendent Stoll, what was his reason for making that request and he said that there were further matters to be investigated and. he wanted to speak further to the father of° Dawson in relation to other matters. The administration of the police force is a matter that ought to be conducted for the benefit of the public. Tt ought not be conducted for the private benefit of individuals, particularly individual police officers. That must be one of the reasons why general instruction 18 is framed as it is. When a police officer embarks upon a criminal investigation, it is of the highest importance that his superiors know where he is, what he is investigating and. from time to-time, how far his investigation has got. It is also important that some of his colleagues - and I refer to modus operandi people, finger print record people and others - are able as soon as possible to put to the public good, information obtained. What has happened here is that for his: own purposes, Sergeant Donaldson, has secured the attendance, not of an appropriate police officer, but one of his own choosing, outside that officer's geographical area of responsibility and in circumstances where Donaldson was able, as it turned out for some time at least, to maintain control over the actions or omissions of the only policeman involved in the investigation, apart from himself. He diverted public resources, namely the -time and energy of Senior Constable Hobart, and the vechicle with the cost of: running it away from where they were meant to be and into his private service. He. sought to maintain the secrecy of that by directing Constable. Hobart not to put in the criminal offence report which Hobart Plainly was obliged to submit promptly. When asked by Superintendent Stoll, "Are you aware that Senior Constable Hobart has made no official record of the matter to which we have referred during this conversation?" Donaldson replied, "Yes, ab my request." That is the clearest possible admission of Donaldson's guilt of the charge 23/8485. I remit the proceedings to the Commissioner for the imposition of a penalty on Sergeant Donaldson. Turning now to the charges against Sergeant Hobart, as he now is. Those charges are three in number. I have already indicated in the course of addresses from counsel that as to two of them, I am not satisfied. The first charge against that officer, namely 24/8485 alleges that whilst on duty he failed to make an entry in his official notebook of a matter of which a. note should be taken. And the matter, the subject of the required note, is set. out in the terms of the charge. 'The charge is laid pursuant to general instruction 37, instruction 4b. I have been troubled throughout the hearing by the very terms of that general instruction itself but other issues arise apart from that. The instruction, on the face of it, makes obligatory the making of an entry of any~ matter of which a note should be taken. That seems to me to be saying to a police officer, io "You shall write down what you should write down. Tt is very close to being meaningiess and I have - I think perhaps that the Tribunal Fay Q cT i a oO wT wu @ cr very fact is responsible fer the pr: has been told about during the course of the evidence, namely that it is by many officers, including many officers senior to the respondent, honoured in the breach. Aside from the difficulty T nave with the drafting of the general instruction the evidence suggests to me very strongly that Sergeant Hobart has been trained in a way that does not - that is trained by instructors in the Australian Federal Police - that does not induce him to use his notebook, but.to use other materials to record. events as they occur from time to time in the course of his investigations. And, indeed, in the present case he has sworn, and I. accept him, that on. 20 March 1983 at the Scullin Service Station he made notes otherwise than in his notebook. In all the circumstances I. am not satisfied that the offence alleged in 24/8485 is made out. The second charge against Sergeant Hobart is number 24/8485, the essence of which is that he having had an offence, namely a larceny at the Total Service Station, Scullin, reported to him did fail promptly to submit a typed criminal. offence report, contravention of general instruction 18(6) to which I have already referred in dealing with the charge against Sergeant Donaldson. I simply remind' myself of the importance of the bringing into being of such co documents promptly as [ alluded to that importance in the course of my findings in relation to Sergeant Donaldson. Sergeant Hobart was also interviewed in relation to hese matters by Superintendent Stoll and a transcript of the tape recording of the interview is exhibit H2 in these proceedings. | In the course of that interview at page 12.5 he was asked, "Have you at any time submitted a COR, a criminal offence report?" He answered, "No." Further he was asked, "Would you care to tell me your reasons for not doing so?" He answered, "Because of the fact that Mrs Donaldson, through Sergeant Donaldson informed me that she did not wish any formal police action to be taken. I guess [ short-circuited the system as a. COR should: have gone in and then a supplementary COR advising that. no formal. action should be taken." Now, it is important to read those answers with great care. The charge that he is brought here to answer alleges an offence on 20 December 1983 and Ihave no business. to. look at. any subsequent offence as he himself seems to be doing in' one at least of the answers that I have just read from exhibit H2. I think iff ane reads the short-circuit answer carefully what he is really saying is that there should have been a COR initially and then a supplementary COR should have gone in after the communication from Mrs Donaldson through Sergeant Donaldson. Be that as it may it is clear to me that his obligation under general instruction 18(6) was to submit a typed criminal offence report before he went off duty on 20 December 1983. He had been asked to investigate a larceny, he had done so to some extent and before he left the premises at Scullin he had reached a state of mind that enabled him to tell Sergeant Donaldson that Dawson was responsible for taking the money or perhaps to tell Sergeant Donaldson that Dawson was probably responsible for taking the money. He gave evidence to the effect of each of those propositions. The terms of 18(6) do not, in any way, limit the obligation to report the circumstances where there is a clear case against some offender. A reported offence even without any indication of an offender is caught by that provision and it is therefore at least the purposes to which I alluded in giving judgment in relation to Sergeant Donaldson. I bear in mind the expert evidence given by Chief Inspector Brian Fletcher. It must, as a matter of logic, be the obligation of the member to submit his report before he goes home at the end of the shift for, when he does' go home, he does not know what events might overtake him; he does not know what lapse of memory might befall him. The obligation is expressed to be to make the report promptly. It must mean, as I read it, that his obligation is to do it on the day or, at least, aS soon as practicable thereafter. There can be no suggestion that he made any attempt on the day or immediately thereafter to comply with the provisions of 18(6). It seems' to me that that offence is made out and I remit the ° Va "\e . 10. proceedings to the Commissioner for him to impose a penalty. Sergeant Hobart also stands charged with a third disciplinary offence, namely 26/848S, the gravamen of which is that he knowingiy made, in the course of his duty, an oral statement that. was false, the oral statement alleged being part of the interview between himself and superintendent ( as he now is ) Stoll on 8 March 1984, the transcript of which is now exhibit H2 and to which I have already referred. A finding of guilt on that charge is only possible if one accepts the evidence given here of the man Dawson. Dawson has told the Tribunal that at the Scullin Service Centre on 20 December 1983 while he, Dawson, was being interviewed by the respondent, Hobart, he, Dawson, admitted. the commission of an offence or offences to Hobart. ~ That. evidence of Dawson is not corroborated in any way by any other evidence before the tribunal. The falsity, if it be false, alleged against the respondent is his assertion to Stoll that Dawson had denied the allegations. I have been greatly troubled by this charge. I have the gravest 'suspicions. I bear in mind that heretofore Sergeant Hobart has borne a good reputation which has heen deposed to by a number of his senior officers. As against that, I bear in mind that in this very case he lent himself to, an irregular operation which was designed not to be a discharge of his duty, but to be something that he was doing in the private service of his friend Sergeant Donaldson. That circumstance, IT think, milttates against an almost automatic acceptance of him as aman of the highest character and credibility. However, one must look also at his accuser. [ positively disbelieve the accuser, namely Dawson, on = one aspect of his evidence. When questioned about what. I think he said was his only conviction, namely a conviction for shoplifting which arose out of events that occurred apparently some time after 20 December 1983, he sought to excuse himself from culpability by saying that he had. pleaded guilty to an offence which he had not committed and which offence had been committed by his former girlfriend's' nother. I simply do not believe Dawson when he says that. There are many woolly areas of his evidence which have been exposed in the course of cross-examination of him. I think it would be dangerous to make what would be a very serious finding indeed against Sergeant Hobart,. namely that he knowingly made a false statement to Superintendent Stoll. on the evidence of that. man. - In relation to 24 and 26, I make a finding of not guilty in each case. In relation to 25, I make a finding of guilty and remit the proceedings to the Commissioner for imposition of a penalty. Hobart I order that the Commonwealth pay 50% of Sergeant 's costs of tne proceedings. a) f f (Mr B.R. Maguire, Q.C., Member, Federal Police Disciplinary Tribunal)