— [iige) AFPDT 7 IN THE FEDERAL POLICE ) ) No. FPDT 7 of 1986 DISCIPLINARY TRIBUNAL ) SENIOR CONSTABLE GRAHAM BARRY MITCHELL Appellant THE COMMISSIONER OF POLICE Respondent ORDER THE PRESIDENT (KELLY J) 7 NOVEMBER 1986 CANBERRA, A.C.T. THE TRIBUNAL ORDERS: Tne That the appeal from the decision of the respondent Commissioner dated 11 August 1986 whereby he reduced the appellant in rank from the grade of Senior Constable within the rank of Constable in_ the Australian Federal Police to the grade of Constable within that rank be dismissed, the reduction in rank to take effect from this day. 2 That the decision of the respondent Commissioner of 13 August 1986 that the rate of salary payable to the appellant should be that payable to a Constable in his second year of service be varied so that the rate of salary payable to him shall, with effect from this day, be that of a Constable in his fourth year of service. IN THE FEDERAL POLICE ) No. FPDT 7 of 1986 ~~ DISCIPLINARY TRIBUNAL ) SENIOR CONSTABLE GRAHAM BARRY MITCHELL Appellant THE COMMISSIONER OF POLICE Respondent REASONS FOR DECISION KELLY J (President) 7 NOVEMBER 1986 This is an appeal brought under s.69 of the Complaints (Australian Federal Police) Act 1981 (the Act) against a penalty imposed on Senior Constable Graham Barry Mitchell, the appellant, by the respondent Commissioner. By notice issued on 3 June 1986 under Regulation 19 of the Australian Federal Police (Disciplinary) Regulations (the Regulations) the respondent instituted proceedings against the appellant alleging a disciplinary offence specified in Regulation 18(1)(h) of the Regulations. The notice described the nature and particulars of the alleged offence as follows:- "That on 9 May 1986, at Canberra in the Australian Capital Territory, you the said GRAHAM BARRY MITCHELL were found guilty by the Magistrates Court Canberra of an offence against a law of the Commonwealth, namely an offence pursuant to section 11(1) of the Statutory Declarations Act 1959." Regulation 18(1)(h) reads:- "(1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member — (h) is found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country." Section 11(1) of the Statutory Declarations Act 1959 provides that a person who wilfully makes a false statement in a statutory declaration is guilty of an offence against that Act. If the offence is prosecuted summarily a fine not exceeding $200 or imprisonment for a term not exceeding six months may be imposed but if it is prosecuted on indictment the punishment provided is imprisonment for a term not exceeding four years (s.11(3)). =2— On 25 June 1985 the appellant received a phone call from one Stephen Bryant, an employee of Civic Co-operative Permanent Building Society Limited (the Society). He told the appellant that the loan account on frig house was two or three months behind. That afternoon the appellant went to see Mr Bryant and told him that he had lost his passbook and that money had been taken without his permission from his account with the Society. Mr Bryant said that he would get the relevant withdrawal slips for the appellant to inspect and an appointment was made for the following afternoon. The appellant left the office of the Society and made arrangements with a finance company to borrow some money to meet the immediate debt he owed the Society. On the next afternoon, that of 26 June 1985, the appellant went with his wife and children to the Society's offices and again spoke with Mr Bryant. Mr Bryant showed him some withdrawal slips. The appellant said that he had not made the withdrawals. Mr Bryant then placed two statutory declaration forms in front of him. One was blank while the other was an example of what Mr Bryant required the appellant to say. The appellant completed a statutory declaration and signed it. It is not suggested that the declaration was not validly made. Thereafter, the appellant gave Mr Bryant the cheque which he had obtained from the finance company. The cheque brought his account up to date and included an amount payable in respect of the next month. -3- The text of the statutory declaration was as follows:- 5 I am the same person as and identical with the person named and described as the holder of passbook Savings account 830-837 with Civic Co-operative Permanent Building Society Ltd. 2. I was not involved in any way with the four withdrawals of $200 each made on 4 dates debited to the Passbook Savings Account No 830-837 - as follows in para 4, 3. In consideration of the Payments to me of the sum of eight hundred dollars, in full Satisfaction in respect of all claims and demands whatsoever in connection with my account with the Civic Co-operative Permanent Building Society Ltd arising out of the abovementioned fraudulent withdrawals from the aforesaid account, I Graham Barry Mitchell hereby release the Society from all actions, Proceedings, claims - and demands, whatsoever arising out of the transaction aforesaid or otherwise 4. 2/5/85, 16/5/85, 30/5/85 - 13/6/85." (I have corrected some minor errors which appeared in the original document.) The statement made in Paragraph 2 of the declaration was false. The appellant was questioned by Detective Senior Sergeant Eriksen of the Internal Investigation Division of the Australian Federal Police on Friday, 9 August 1985. He was asked how many times he had alleged to Mr Bryant that someone had fraudulently operatéd on his account. He said that there were four times. He admitted to Detective Erikson that he had withdrawn the money on those four Occasions. He was asked why he told Mr Bryant that he knew he nothing of the withdrawals. He replied, "Because of his attitude and he called me a liar when I said we had not received any letters from him about the loan arrears. I was also intimidated and embarrassed by him and could not bring myself to admit to him that I was having money problems and could not meet my loan commitments". He was then asked, "When you were making the statutory declaration were you aware that the information that you were including in it was in fact false?" He replied, "Yes but I didn't think I had any other choice as I didn't want to admit that I had made a false statement earlier." He denied that he hoped to obtain a refund of the $800 from the Society. This denial was made in the face of paragraph 3 of the statutory declaration but I accept, as the Commissioner appears to have done, that he did not intend to defraud the Society of the $800 involved by obtaining a refund of that sum. On 9 May 1986 the appellant was charged before the Magistrates Court that on 26 June 1985 he wilfully made a false statement in the statutory declaration, namely, that contained in paragraph 2, knowing that statement to be false. He pleaded not guilty but the learned Magistrate found the offence proved. He made use of the provisions of S.19B of the Crimes Act 1914 (Cwth) and without proceeding to conviction discharged the appellant upon his entering into a recognizance self in the sum of $200 to be of good behaviour for a period of 12 months from 9 May 1986. -5- In response to the notice of institution of proceedings the appellant addressed a statement in writing to the Commissioner. Part of it read:- "I do of course admit that Magistrate Nicholl +.» found an offence proven against me of Making a false statement in a_ statutory declaration although I feel it important to note that Mr Nicholl did not proceed to enter a conviction against me but proceeded under S.19B of the Commonwealth Crimes Act. The offence itself was committed whilst I was under extreme financial difficulty and in an effort to keep my wife unaware of the financial strains affecting ourselves at that time. I was requested to sign' the declaration by an officer of a financial institution who had accused my wife of alleged falsehoods regarding receipt of letters from that institution to our home address. I would submit that this rash unthinking decision is one that is totally out of character for me and one that should not and will not have any bearing or 'influence on my future conduct as a Police Officer. The offence was one of making a false statement but it was not made to obtain any financial advantage. It was merely to cover my embarrassment at admitting personal financial difficulty and the attitude of the officer referred to which motivated me. I am ashamed of having allowed myself to be so led astray and regret my action deeply." After a hearing conducted on 14 July 1986 the respondent Commissioner found the appellant guilty of the disciplinary offence charged. He then gave him notice that he was considering that the appropriate punishment was one of reduction in rank and gave him the opportunity to make submissions to the contrary. The appellant made use of the offices of the Secretary of the Australian Capital Territory Branch of the Australian Federal Police Association who = wrote on his behalf to the Commissioner advancing reasons why the proposed penalty should not be imposed. By notice dated 11 August 1986 served 14 August 1986 the Commissioner imposed upon the appellant 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. He fixed 15 September 1986 as the date on which the penalty was to take effect. By a further notice dated 13 August 1986 the Commmissioner, in exercise of the powers given him by Regulation 22(1B) of the Regulations, determined that the rate of salary to be paid to Constable Mitchell should be that payable to a Constable in his second year of service. The result of the Commissioner's determination is that the appellant will lose 10 years seniority and suffer an initial reduction in salary from $24,516 to $19,617, a loss of $4,909 per annum or $94.40 per week gross (paragraph 6 of Exhibit 15 - Terms and Conditions of Service of the Australian Federal Police). Taking an average taxation rate of 40¢ in respect of the amount of the reduction (the appellant's liability to taxation probably will be assessed according to overlapping rates) I estimate that his loss of net disposable income will be of the order of at least $56 per week or $242.66 per month. The appellant was appointed to the Commonwealth Police Force on 30 September 1974. His appointment to that Force was confirmed on 30 September 1975, he having in May = 1975 attended a Protective Services Division training course. For some years he served as the Commissioner's driver. He has been the subject of several assessments. On 27 April 1979 he was described as a keen and reliable member who seeks greater responsibilities. On 29 September 1983 it was noted that he was currently serving as the Commissioner's driver as he had since 1979. He was described as performing all the duties associated with this position in a diligent and conscientious manner. On 10 October 1983 it was said of him that he had not had an Opportunity to accumulate any meaningful police experience. On 8 August 1986 he was described as "[a] mature person who is quite capable, given the experience, to become an above average officer ... average now". Mr Benson, Secretary of the Australian Capital Territory Branch of the Australian Federal Police Association, said of him in his letter to the Commissioner to which I have made reference above:- "He has never been subjected to any adverse comment, criticism or disciplinary matter prior to this incident and it is unlikely that he would ever offend again. He has held the position of Commissioner's driver, a position that requires considerable tact, loyalty, trust and integrity." The appellant gave evidence. He was vigorously cross-examined concerning his assertion that Mr Bryant had accused his wife of being a liar. He said in evidence that he had told Detective Erikson of this but Detective Erikson could not remember it and there is no reference to such an incident in the record of interview. However, the assertion -8- stands very much on the periphery of this matter and I do not think it need be taken into account in deciding this appeal. The respondent Commissioner gave reasons for his decision on penalty. They have been most helpful. I set out some of what he said at length:- "The disciplinary offence charged is a serious breach of the standard of conduct expected of members of the Force. The wilful making of a false statutory declaration, albeit otherwise than in an official capacity, is an act of dishonesty which reflects badly on the member in particular and the reputation of the AFP in general. If the general public perceive that its policemen are of poor character then the Force suffers. The effectiveness of members of the AFP depends on them acting with integrity both in their civilian and service life. The worth of a member is seriously diminished when a member's character is blemished by acts of 'dishonesty. If offences such as the one committed by Senior Constable MITCHELL occur, the credibility of his evidence in Court can be seriously undermined. In fact it would not have been out of place for such an offence to attract a much greater penalty than imposed, namely, dismissal from the Force." Pausing there, it cannot be said, in my opinion, that the Commissioner has in any way misdirected himself. The Commissioner went on to say:- "In determining what penalty to impose on Senior Constable MITCHELL, I took' into account the fact that, as outlined above, the member's integrity, character and credibility have all been irrevocably diminished by the wrong committed. This causes a consequent lessening of his operational worth as a witness and effectiveness as a law enforcement officer. cas I was influenced in my decision to impose what I consider to be quite a lenient penalty by the following: . The determination of Magistrate NICHOLL; ' his twelve years unblemished service; : the member's marital status and dependant children; . the member's claim that in wilfully making a false statutory declaration he did not obtain any monetary advantage but committed the act to cover embarrassment over personal financial difficulties. I consider the penalty imposed by me as a result of the offence which Senior Constable MITCHELL committed as fair and equitable when all relevant factors are considered." In Commissioner of Police v. Gordon (1981) 1 N.S.W.L.R. 675, Moffitt P, with whom Reynolds and Glass JJA concurred, said at p.688:- wIt is relevant to make two further observations. The first is that the rules provide detailed procedures in relation to disciplinary matters in respect of a highly sensitive area of public administration, the police force being a disciplined force under oath to keep the peace so that, in its relationship with the public, the integrity of its members is of great importance. The conviction of a member of the force is prima facie inconsistent with the performance of his office relating to the enforcement of the law." I respectfully agree. It follows, therefore, that the Commissioner might well have dismissed the appellant from the Force in the exercise of his powers under Regulation 22(1) of the Regulations. The effect of Regulation 22 is that in the appellant's circumstances' the Commissioner might have admonished or reprimanded him, reduced him in rank or -10- dismissed him. He had no power to impose any other penalty. Section 69(4) provides, inter alia, that the Disciplinary Tribunal, when constituted by the President or a Deputy President, shall hear and determine an appeal by a member under sub-section (1) and may, inter alia, set aside the penalty imposed on the member in respect of the breach of discipline and substitute for that penalty such other penalty as the Tribunal deems fit, being a penalty that the Commissioner had the power to impose on the member under the precribed Regulations in respect of the breach of discipline. In Hardcastle v. Commissioner of Australian Federal Police (1984) 53 A.L.R. 593, the Full Court of the Federal Court of Australia (Bowen CJ, Gallop and Lockhart JJ) said, at p.5973= "The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish (see Harvey v. Law Society of New South Wales (1975) 49 ALJR 362 per Barwick CJ at 364; 7 ALR 227) or to exact retribution (see Ex parte Attorne -General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 per Fox, Blackburn and Woodward JJ at 244). ... There is no room for the application of what is sometimes misleadingly called the principle of double jeopardy in this case. If the appellant were charged with, and convicted of, the same unlawful assaults as are the subject of the disciplinary offences he would not face double jeopardy or be punished twice for the same offence. He would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The two proceedings are essentially different in character and result." wf f= The penalty to be imposed for the disciplinary offence must take account, therefore, of the need to protect the public, the maintenance of proper standards of conduct by members of the Australian Federal Police and the protection of that body's reputation. I think that protection of the public has been satisfactorily dealt with by the proceedings before the Magistrates Court. The Maintenance of Proper standards of conduct by members requires that the penalty imposed in respect of the disciplinary offence should act as a deterrent to members generally and to the appellant in particular. Very importantly, the penalty must show to the public that an appropriate standard of integrity is demanded of members, In that way the reputation of the Australian Federal Police can be protected. When imposing the penalty of reduction in rank the Commissioner did not immediately exercise the power vested in him by Regulation 22(1B). He does not appear to have received evidence or had material put before him of the appellant's means. In my opinion it is appropriate that when a penalty involving great loss of Salary is under consideration some regard should be had to the means of the offender. In relation to the somewhat analogous situation regarding the imposition of a fine, see Fraser v. R. (1985) 63 A.L.R. 103. There is a danger that without proper consideration of the effect which reduction in salary will have untoward results may ensue, =12=- He gave evidence before me that his_- gross fortnightly salary was $940.29. Deductions in respect of tax ($222.20), Superannuation ($43.40), an insurance policy or policies ($41.26), Australian Federal Police Association dues ($10) and Hospital Contribution Fund of New South Wales ($28.36) reduce his take home pay per fortnight to $594.48. He gave evidence also that his other expenses calculated on a monthly basis were as follows:- Mortgage repayments —- $397. Department Store account - $100. Finance Company repayments - $108. Bankcard - $50. Electricity - $35. Rates - $62.50. Gas and firewood - $22.50 (average). Car expenses - $200. Food and clothing - $400. Those expenses total $634.60 per fortnight. His wife earns $110-$120 per month. He does not as a rule perform overtime duty, preferring to spend the time with his family. He could certainly be considered for more overtime than he does by the simple expedient of indicating in a special book that he is available to work overtime as required. In that way the financial difficulty which any reduction in rank must occasion him will be ameliorated. Plainly an admonition or reprimand was a totally inadequate penalty for the disciplinary offence. Bearing in mind the object of such a penalty it was inevitable that -13- reduction in rank be effected and in my opinion the reduction in rank to the grade of Constable within the rank of Constable was well warranted and ought not to be disturbed. Inevitably that carries with it a heavy financial burden but I think it proper to lessen that burden somewhat. I propose, therefore, to dismiss the appeal against reduction in rank but to order that, with effect from today, the appellant's Salary be that paid to a Constable in his fourth year. The salary payable to a Constable in his fourth year is $20,823. The appellant will therefore suffer a loss for the time being at least of $3,703 gross per annum. In my opinion the reduction in rank and concurrent reduction of Salary to that figure is a sufficient punishment to obtain the objects of the inposteron of a penalty for the disciplinary offence. It may well be the case that further unblemished service by the appellant will lead to relatively rapid advancement back to the grade of Senior Constable within the rank of Constable with further amelioration of the financial burden placed upon him. That, of course, remains a matter for the Commissioner. I certify that this and the \2Z i f the preceding pages are a ore copy ° Reasons forvdudement herein of his Honour Mr. Justice KELULN , PRES\DEAST, FSDERRK PLEUCE DILSCIPLERSARY Associate Dated: wd Aces nts (SRG