[adel arent 5 IN THE FEDERAL POLICE ) ) No. 2 of 1986 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SENIOR CONSTABLE JOHN PETER CZERWINSKI FINDING MAGISTRATE J.J. DAINER 25TH JULY 1986 THE TRIBUNAL FINDS THAT Senior Constable John Peter Czerwinski is guilty of the disciplinary offence alleged in charge No. AFP 16/8586, namely: That he John Peter CZERWINSKI, a member of the Australian Federal Police, was guilty of a disciplinary of fence specified in Regulation 18(1)(b) of the Australian Federal Police (Discipline) Regulations in that he failed to comply vith General Instructions 37(3) issued under Section 14 of the Australian Federal Police Act 1979 in that his official diary (as supplied in accordance with General Instruction 37(2)) for the date 5 December 1983 does not contain a correct record of all duties performed, places visited and the purpose, and the names and addresses of all persons interviewed, namely that on 5 December 1983 he attended Sydney (Kingsford-Smith) Airport at Mascot in the State of New South Wales, at the request of the Australian Customs Service, there interviewed Mark Arthur JOHNSTON, a person suspected of importing narcotics and conveyed Mark Arthur JOHNSTON to St Jamed Court of Petty Sessions and that none of these events are recorded in his official diary for that date. 'a eo = KK - hy CANBERRA 25 JULY 1986 vesevesDoNeee cece cee eeecee -»- MEMBER. IN THE FEDERAL POLICE ) ~ No. 2 of 1986 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SENIOR CONSTABLE JOHN PETER CZERWINSKI ORDER MAGISTRATE J.J. DAINER 25TH JULY 1986 THE TRIBUNAL ORDERS THAT: 1. The charge against Senior Constable John.Peter CZERWINSKI be remitted to the Commissioner of. the Australian Federal Police, in accordance with Section 67 (3)(b) of the Complaints (Australian Federal Police) Act 1981. —— MEMBER— REGISTRAR CANBERRA ofS" popes IN THE FEDERAL POLICE No. 2 of 1986 DISCIPLINARY TRIBUNAL THE COMMISSIONER OF POLICE against SENIOR CONSTABLE JOHN PETER CZERWINSKI REASONS FOR FINDING MAGISTRATE J.J. DAINER 25TH JULY 1986 FEDERAL POLICE DISCIPLINARY TRIBUNAL No. 2 of 1986 COMMISSIONER OF POLICE AND SENIOR CONSTABLE JOHN PETER CZERWINSKI The Commissioner of the Australian Federal Police ("AFP") instituted proveedings against Senior Constable John Peter CZERWINSKI, a member of that Force ("the member") on23rd January 1986, alleging that the member had on 5 December 1983, committed a disciplinary offence specified in paragraph 18(1)(b) of the Australian Federal Police (Discipline) Regulations. The allegation was that the member had failed to comply with paragraph 3 of General Instruction No. 37. The relevant portion of General Instruction No. 37 reads: "3. Diaries should contain a correct record of all duties performed, places visited and the purpose, the names and addresses of all persons interviewed, and details of all persons arrested." Particulars of the charge against the member, leaving aside the formal parts, were that he: aioe /2e " 1... failed to comply with General Instruction 37(3) issued under Section 14 of the Australian Federal Police Act 1979 in that (his) official diary as supplied in accordance with General Instruction 37(2), for the date 5 December 1983, does not contain a correct record of all the duties performed, places visited, and the purpose, and the names and addresses of all persons interviewed, namely that on 5 December 1983 (he) attended Sydney (Kingsford Smith) Airport at Mascot in the State of New South Wales, at the request of the Australian Customs Service, there interviewed Mark Arthur Johnston a person suspected of importing narcotics, and conveyed Mark Arthur Johnston to St James Court of Petty Sessions, and that none of those events are (sic) recorded in (his) official diary for that date." It is relevant, because of the way the member's case was presented, to mention at this point that a charge in the same terms was preferred against Detective Sergeant Jeffrey John Williams of the AFP, the member's immediate superior officer on the date specified in the charge. That charge, and an associated one alleging negligence by Detective Sergeant Williams in the performance of his duties, were withdrawn before the commencement of the hearing in the instant case. Counsel for the Commissioner, Mr R. Wilson, stated that the Detective Sergeant had resigned from the Australian Federal Police, and that his instructions were to discontinue the proceedings. oe0/3- Counsel stated that discontinuance was subject to the Ombudsman being consulted, but this appeared to be in the nature of a formality which, if not already attended to, would be satisfied in due course. I should add that the withdrawn charges had earlier been fixed for hearing together with the charge against Senior Constable CZERWINSKI. I turn now to the facts in the instant case. The evidence was that the person referred to in the particulars of the charge, Mark Arthur Johnston, arrived from Bali on Qantas Flight QF30 between 7.30 am and 8.00 am on 5 December 1983. Johnston was known to the AFP as a person with convictions for drug offences. He was also suspected by members of the AFP in Queensland of intending to import narcotics. He had been made the subject of an "Alert" message which was notified to Customs Officers on duty at the arrival gates at Sydney Airport. When Johnston reached the Customs area at 9 am on 5 December 1985 he was confronted by Customs Officer Wayne Donnelly, who was aware of the alert involving him. Donnelly searched Johnston and noted a quantity of gells, ointments and laxatives in his baggage. He directed Johnston to submit to a full strip-search, and, with Customs Officer Cavanagh in attendance, noted what he believed to be "gell or vaseline" in Johnston's anal area. Donnelly advised his Superior Officer, and Johnston was asked to submit to an ultra scan, which is a scientific method of detecting objects carried internally in the human body. Johnston refused to submit. He was then asked to submit to an internal search of his body, by a medical practitioner, but again refused. «0/4. Mr Donnelly consulted his superiors, and at about 11 a.m. contacted the AFP Drug Unit at Redfern, where Det Sgt Williams and the member were then performing duty, and requested the attendance of Police at the Airport. Det Sgt Williams directed the member to accompany him to the airport. On arrival at the Customs Office, Det Sgt Williams was told by Mr Donnelly of his suspicions. regarding Johnston, and shown the gells, ointments and laxatives which had been in Johnston's baggage. Mr Donnelly also informed the Det Sgt of the finding of what was believed by him to be gell or vaseline in the vicinity of Johnston's anus. Det Sgt Williams then had a conversation with Johnston during which he repeated the earlier request by Mr Donnelly that Johnston submit to an ultra scan and/or body search. Johnston again refused. Both Williams and the member formed a suspicion, as a result of what they had observed and had been told by Mr Donnelly, that Johnston may have been carrying narcotics internally. Det Sgt Williams believed, mistakenly, that Section 196 of the Customs Act provided that an internal search could be ordered by a Magistrate. I do not believe it necessary to canvass further this aspect of the matter, but it seems that an amendment to the Act which the Detective Sergeant considered to be applicable had not, at the material time, yet become law. In any event, Johnston was then conveyed by Police car, in the compnay of Det Sgt Williams, Mr Donnelly and the member, to St James Local Court in Sydney. wwe / De In the meantime, Johnston had contacted his solicitor, Mr G. Meakin, who also attended at the Court. It appears that discussions followed in the precincts of the Court involving Det Sgt Williams, Miss Robyn Gray of the Australian Government Solicitor's Office, Mr Meakin, and a Clerk of the Court, Mr Polkinghorne. It was agreed by all concerned that there had been a misunderstanding by the Police and Mr Donnelly regarding the requirements of the Customs Act for conducting an internal search of a suspected person. It was further agreed that Johnston should be released, which event occured in the presence of his solicitor at about 4.30 p.m. Det Sgt Williams and the member then returned to Redfern Drug Squad HQ. It was common ground that the member, in recording his duties for that day, made the following entry at page 65 of his official diary: "S, Commence duty 0830 hours. Attend to Brief of Evidence in relation to LISKA (1) import prohibited import (2) possession prohibited import cannabis resin - attend DCS office in relation to LISZKA - return to RHQ attend brief of evidence in relation to LOR TAQUK. Complete duty 1630 hours." It was also common ground that Det Sgt Williams made no mention of the incident involving Johnston in his official diary, nor was any notation made of the matter at Drug Squad HQ on the only other relevant record, the occurrence sheet for the day. waw/'6e 6. Nothing more transpired regarding the Johnston incident until 27th September 1984, when his solicitors, Messrs O'Connor and Bellamy, wrote a letter of complaint to Senator Gareth Evans. The essence of the complaint was that Johnston had been held in custody for some eight hours "without entitlement" and had not been well treated during that time. Compensation was requested. The matter was eventually investigated by the AFP Internal Investigation Division, and statements taken from those involved. The member was interviewed on two occasions during the course of that investigation, by Detective Inspector W.A. Taylor on 10th April 1985 and by Sergeant W. Fisher on 19th April 1985. During the second interview, the typed record of which became annexure "0" to exhibit "A", the member was asked, inter alia, the following questions, and gave the following answers, regarding the entry in his diary for 5th December 1983: "a 4. I refer you to the page marked 5. A Yes. Q 5. What does that refer to? A It refers to day (sic) that I commenced duty at 0830 hours at the Regional Day Unit in Sydney, completed duty approximately 1630 hours on the same day. Q 6. The description of the jobs that you did during that date, are they correct? A Yes, however, there is one ommission. Q 7. And what's that? A It's the matter under current investigation in the name of Johnston. vee/ Ts Q 8. Can you give any reason why it wasn't recorded? A During that period I was working lengthy hours which I did not claim for, preparation of briefs for committal. The only explanation I can find is that I forgot." Further questions were put regarding the entry in the member's diary regarding the matter of LISZKA and he said he attended the "DCS office" regarding that matter in the morning before going to the Airport. The following passage then ensued: "Q 42. I see, and you've spent approximately five or six hours at the Airport and Court with Mr Johnston and made no mention of that in your diary, is that correct? A That's correct. Q 43. And yet you say you went to DCS office in relation to a Mr LISZKA, Miss LIZSKA or Mrs LISZKA to pick up some papers early in the morning, You've mention (sic) that in your diary? A That's correct. Q 44. How long would that have taken you? A About five or ten minutes. Q 45. Then why didn't you mention the five or six hours work that you'd done on that day in regard to Johnston? A Where (sic) that matter didn't concern me as I was only the corroborating officer and as the matter did not eventuate into anything and the Officer-In-Charge was Sergeant Williams I felt no need using my discretion to put that in my diary. That's the only explanation that I can give at this stage. Q 46. Well, isn't it correct that you're suppose (sic) to put all actions taken in your diary? A That"s correct, sir. Q 47 And this is the majority of your day which you failed to mention in your diary and yet you mention something which took a few minutes? A That's correct, sir. Q 48. Don't you think it's remiss of you not to put that in your diary? A The only explanation I can offer is I forgot. The member did not give evidence before me, but the former Det Sgt Williams was called by the Commissioner. He agreed that he was the member's immediate superior officer on 5th December 1983 and as such was in charge of the Johnston inquiry. The witness also agreed that he had not given the member any directions regarding completing his diary entry for the day. Det Inspector T.C. Young, of the Sydney AFP Drug Unit, was called on behalf of the member. He said he had had no complaints about the member. As to the keeping of diaries, he said it was his practice to check those of the detectives under his control every second Monday. The circumstances surrounding the charge against the member were put to Det Insp Young and he was asked (P 53, transcript of 28.5.86) whether he considered members had a discretion whether or not to record matters, such as the Johnston incident, not considered to be important or significant. His reply was: woef Ie "T agree with that. The original question - with the benefit of hindsight now, in my experience - I would probably have made an entry but I am wiser by years and always look to the future when I consider what I am going to write down. It is easier to say that with the benefit of hindsight, of course." Dep Insp Young later (p 54) referred to the Johnston incident as a "negative type drug alert which ... are written off - they are recorded in as much as the computer entry is written off on a printout sheet and filed and quite often there is very little other official record made of the negative ones because the positive ones are the ones we are there for." The Det. Inspector, who said he had 22 years service, went on (p 56) to say: " 1... If I was told that Const Czerwinski and Sergeant Bloggs had gone to the airport to do a job, and later in the day I was told it was negative and was told the reasons why it was negative - there were no drugs or whatever - I would not be the slightest concerned when I checked his diary next Monday that it was not in there, because I knew, I had a general idea, the sergeant had a general understanding of what was going on out there, and I would accept that. If it was positive and I looked at his diary and it was ignored, I would be a bit concerned." ---/10. 10. Further, when asked whether the time spent on an inquiry was relevant, he said (p 57): "Yes, I agree. I think that is a good point. If it was, say, all day and the diary showed 8.30 am to 4.30 pm and nothing between the two times, I would express an interest." The witness was later asked (p 60) whether an attempt to obtain an order under Section 196 of the Customs Act was a relevant consideration as to whether an appropriate entry should be made in a diary. He replied: " I agree that would form a reason in my mind, to make a diary entry, yes." Det Insp Young went on to say (p 60) that in such a case he would expect a junior officer, working with a superior, to make an entry in his diary, albeit a brief one. He qualified that answer (p 61) by saying that while he would expect the sergeant's diary to contain a note of the incident, so far as a junior officer was concerned, such as the member, he believed: " ... as the inspector of that group I would not be overly concerned to note anil entry . On the other hand, as a personal preference, I would have made an entry myself." vae/ Tle ll. Senior Sergeant K.P. Hardiman gave evidence on behalf of the member. He said he was the member's supervisor, and described him (p 63) as a "very diligent member". Sen Sgt Hardiman said (p 64) that he believed that a discretion existed as to what was recorded in diaries. Detective Sergeant M.W. Standen also gave evidence on behalf of the member. He said (p 64) that the member could be relied upon and was: " .,. certainly enthusiastic and capable; certainly the first to volunteer for any task. He is knowledgeable about his work, goes about it in an efficient and effective manner and I am happy to work with him on any job." The Detective Sergeant said that it was his practice, in making entries in his diary, not to make detailed notes of people he had spoken to, but to make a" sas general entry as to the nature of the work I was doing that day" (p 65). Counsel for the member, Mr Wasilenia, made a preliminary submission, before calling evidence, that no disciplinary offence had been made out because General Instruction 37(3) contained the word "should", which, he submitted allowed a member a discretion as to whether a diary entry was required. In his submission, the Instruction was not mandatory, and therefore no breach arose. Mr Wilson, for the Commissioner, submitted that the charge had to be heard and determined by the Tribunal and a submission similar to a "no prima facie case" was inappropriate in the circumstances. It was agreed that I should reserve on the point. venf l2e 12. In the event, the same argument was relied upon by Mr Wasilenia in his final submission, with Mr Wilson putting the counter argument that the Instruction did not permit a discretion, so that I believe the most appropriate way to proceed is to regard the preliminary submission as being part of the overall case presented on behalf of the member. There was no issue that the member had made no entry in his diary regarding the Johnston inquiry, so, to the required degree, i.e., of proof beyond reasonable doubt, I find that the factual content of the charge has been made out. That however, does not determine the matter, because I now have to decide whether the member was permitted a discretion regarding making entries in his diary. It was clear from the evidence of Det Insp Young and Sgts Hardiman and Standen, that a form of de facto discretion was exercised by members of the AFP, at least in the Sydney Drug Unit. However , as Mr Wilson submitted, the existence of such a de facto discretion did not affect the issue of whether there was a de jure discretion. His point was that in General Instruction 37(3), the word "should" must be construed as meaning "shall", and that the terms, in any event, meant the same thing, i.e. that obedience was required. However, the Instruction was conceded by Mr Wilson to be somewhat inelegantly drafted. The expressions "shall", "are to be", "yill not be" and "should" are used in various paragraphs of the Instruction. For instance, para 3(i) reads: acolo 13. "should the book be lost (the member shall) immediately report the fact to the Officer in Charge of the Division to which he is attached." The meaning to be attached to "should" is that context must be "in the event of". There is also a curious change of expression between paragraphs 3 and 4. Paragraph 4 clearly imposes a duty by stating: "4, Each member issued with an official notebook shall: -" (and then follows a number of specific instructions) Whereas, paragraph 3 puts the requirement passively, by stating: "Diaries should contain a correct record; etc ... " It would be less difficult to accept an argument that the expression was meant to be mandatory if the paragraph simply said "Members shall make entries as to ... etc win the same way in which paragraph 4 is expressed. Mr Wilson, in his final submission, stressed that no improper motive was suggested as to the member's failure to make an entry in his diary regarding the Johnston incident. He also conceded that Det Sgt Williams (as he then was) bore primary responsibility for the Johnston inquiry, and his failure to record the matter in his diary constituted a material breach of Instruction 37(3). Mr Wilson said this did not relieve the member from his separate, individual responsibility to make an entry in his diary. The inquiry o.-/14. 14. vas "substantial" in Mr Wilson's submission, occupying 4 to 5 hours of the member's working day. The member's principal explanation for his failure to record the incident was that he had forgotten to do so. This,according to the member's statements to Sgt Fisher, had occurred because of the negative result of the Johnston investigation, the fact that the member was present only as a junior officer, and that he was under considerable pressure because of other investigations in which he was involved at the relevant time. Mr Wilson's submission was that the explanations of fered by the member were insufficient to exculpate him. The case of In re Davis 75 CLR 409 was cited by Mr Wilson to support his contention that in any event words such as "shall" and "should" cannot be construed without reference to their context. As Starke J said, at p 418" "But the word "shall" does not always impose an imperative duty to do or omit the act prescribed. The word is faculative: it confers a faculty or power." Mr Wilson also submitted that Section 33 (1) of the Acts Interpretation Act 1901 applied to members of the AFP. That Section reads: "Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires." wae/15. 15%. The member was, he said, under a duty to comply with General Instruction 37(3) and had failed in that duty. Mr Wasilenia submitted that there was both a de facto and a de jure discretion as to what entries were required to be made in diaries. The evidence of the three witnesses called on behalf of the member, particularly that of Det Insp. Young, supported his submission that as a matter of practical Police operational work, members were not expected to make detailed entries, particularly where an inquiry was negative, as it was in the Johnston matter. In addition, he pointed to Det Insp Young's evidence that he "would not be overly concerned to note a nil entry" in a junior officer's diary in such a case. In addition, Mr Wasilenia submitted that the use of the word "should" supported his contention that there was in any event ade jure discretion. His submission was that the conscious use of that word, rather than the imperative "shall" used elsewhere in Instruction 37, meant that a record of the matters referred to in paragraph 3 of the Instruction was required to be made only where, as a matter of personal judgement by the member concerned, it was considered necessary. As to the meaning of the word "should", the Oxford English Dictionary defines it in the entry dealing with "shall", ascribing to the latter term, inter alia, the meaning "4. in commands or instructions, equivalent to imperative." As to "should", the OED lists a number of uses of theword with temporal or modal function, ooe/16- 16. one of which is "17. In statements of duty, obligation or propriety." It seems that the terms are, at least in the setting of an order or instruction, interchangeable. Nevertheless while there could be no ambiguity regarding compliance where the word "shall" is used in such situations, it seems open to argument that the use of the word "should" in juxtaposition could convey an impression to the reader that the requirement was not imperative. In my view, the use of the term in General Instruction 37(3) is unfortunate, and as I have stated earlier, it seems that it would have been preferable to use the term "shall" throughout. As a matter of strict interpretation, however, I accept that the Instruction does not permit a discretion to be exercised. That a de facto discretion was believed to be open to members is clear from the evidence of the witnesses called on behalf of the member. In addition, in his answers to Sgt Fisher, the member also expressed the belief that such discretion existed. It does seem, however , on the evidence of Det Insp Young, that notwithstanding his acceptance of a discretion, he would have expected the member to have made some note, however brief, of an event which involved an attempt to obtain an order under Section 196 of the Customs Act. As was said at p 60, transcript of 28.5.86: "Would you expect the junior officer to make a diary entry in those circumstances, even a brief one? ... Yes, I would not be terribly ... I would expect it, yes" woe/l7. 17. It is true that the Inspector later (p 61) said he would "not be overly concerned at a nil entry' but added that he would "have made an entry. "as a matter of personal preference Accepting, as I do, that an obvious understanding was abroad in the Sydney Drug Unit that some discretion was allowed in this area, I believe on the material before me, that there was nonethe less an obligation on the member to record in his diary, however briefly, the incident involving Johnston. It had occupied a substantial portion of his working day and, as Det Insp. Young pointed out, involved an approach to a Court to obtain an order. In my view, the member's failure to make any entry accordingly constitutes a breach of General Insturction 37(3), and I find the charge proved.