JUDGMENT No. WP €2. (39) IN THE FEDERAL POLICE ) ) No. 6 of 1986 DISCIPLINARY TRIBUNAL ) TRIBUNAL: DATE: ROBERT ALEXANDER GEORGE DONALDSON Against THE COMMISSIONER OF POLICE IN THE MATTER of the Complaints (Australian Federal Police) Act 1981. DECISION Mr. Justice Jenkinson, Deputy President 2 dune, 1987 The Tribunal Orders That: The appeal be allowed. The penalty imposed on the appellant on 7 July 1986 by the Commissioner in respect of the disciplinary offence of which the appellant was found guilty in the proceeding in the Tribunal numbered FPDT 3 of 1986 he set aside. In lieu of the penalty aforesaid the penalty in respect of the said disciplinary offence be that the apellant pay a fine of $500. The said fine be paid within 2 months of this date. IN THE FEDERAL POLICE ) No. 6 of 1986 DISCIPLINARY TRIBUNAL ROBERT ALEXANDER GEORGE DONALDSON Against THE COMMISSIONER OF POLICE IN THE MATTER of the Complaints (Australian Federal Police) Act 1981. 2 June, 1987 MR. JUSTICE JENKINSON Deputy President REASONS FOR: DECISION Appeal by a member of the Australian Federal . Police, Robert Alexander George Donaldson, against the penalty imposed on him by the Commissioner of Police, in respect of. a breach of discipline, in pursuance of s.67(6) of the Complaints (Australian . Federal Police) Act 1981. On 3 April 1986 this Tribunal, constituted by Mr. 8.K. Maguire Q.C., found the appellant guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations : improper conduct otherwise than in an official capacity. The conduct specified as that of which the breach consisted was that Sergeant Donaldson, being a more senior officer, had requested Senior Constable Geoffrey Stephan Hobart 2. not to report an offence which was known to Hobart, Donaldson knowing that Hobart was required to report such an offence. In December 1983 Mr. Donaldson, a sergeant, and Mr. Hobart, a senior constable, were both stationed at Woden Police Station. A service station at Scullin was at that time conducted by a company of which Mr. Donaldson's wife and sister were the directors. Believing that some hundreds of dollars had been stolen from a safe in the service station, Donaldson asked Hobart, on about 20 December 1983, to investigate the theft. After Mr. Hobart had questioned one of the employees at the service station, a young man called Dawson, Mr. Donaldson was given by Hobart to understand that Dawson had admitted stealing money from the safe. Mr. Donaldson asked Hobart not to proceed with the inquiry or make a report of the offence at that stage. Mr. Donaldson's stated reason for those requests was that he wished to speak to Dawson's father about the theft and about allegations of other dishonest conduct by the young man. In the result no charge of theft of money from the safe was made against Dawson, but a payment. of $310 was made to Donaldson's wife by a friend of Dawson by way of compensation for the loss of money from the safe. General Instruction 18.6.a. of the instructions issued by the Commissioner in exercise of the powers and functions conferred on him by ss. 13 and 14(b) of the Australian Federal Police Act 1979 requires that members promptly submit "typed Criminal Offence and Modus Operandi Reports ...... for all reported offences". Mr. Donaldson's request that Hobart not report the theft of money from the safe immediately was a request 3. that Hobart disobey that instruction, the existence of which was known to Donaldson. Having found Sergeant Donaldson guilty of the disciplinary offence charged, Mr. Maguire remitted the proceedings to the Commissioner, pursuant to 5.67(3)(b) of the Complaints (Australian Federal Police) Act 1981, for the imposition of a penalty on Mr. Donaldson in respect of that breach of discipline. On 7 July 1986 the Commissioner imposed the penalty of reduction in rank from the rank of sergeant to the grade of constable within the rank of constable. This appeal is brought against that penalty, pursuant to 6.6B(1)(b) of the Complaints (Australian Federal Police) Act 1981. Sergeant Donaldson has not been present at the proceedings before Mr. Maguire or at the proceedings before me. He has been very unwell on both occasions. Because Mr. Donaldson was neither present nor legally represented before Mr. Maguire, the Tribunal hearing this appeal was empowered, according to the submission of Mr. A.S. Gillespie Jones, who appeared with Mr. Kilduff for the appellant, to enter upon a consideration of the question whether the appellant was or was not guilty of the disciplinary offence of which he had been found quilty by the Tribunal constituted by Mr. Maguire. This submission is plainly contrary to the provisions of Division 4 of Part VI of the Complaints (Australian Federal Police) Act 1981 and must be rejected. Some of the submissions advanced in support of the 4. contention that the appellant was not guilty of the disciplinary offence should be noticed, because they might be said to have some relevance to the question as to what penalty should be imposed. . It was submitted that in exercise of his office of constable Senior Constable Hobart had an autonomous discretion and that a request to delay the reporting of the offence could not be improper because it was no more than a request that he exercise his discretion in a particular way. The submission confuses those functions in which an original and independent authority conferred by the common law is to be exercised and a function which a member of the Australian Federal Police is required by the. command of a superior, for the giving of which command statutory authority has been provided, to perform in conformity with the terms of the command. The prompt making of the report was plainly a function of the latter kind. Hobart could have no justification for delay in compliance with General Instruction 18.6.a. To request him to do so was in my opinion improper conduct. The circumstances under. which the request was. made should have aroused in the appellant's mind a realisation of the impropriety of the request. He had arrogated to himself the privilege of selecting the member of the Australian Federal Police who should investigate a matter affecting the financial interests of his wife. The risk should have been obvious to a policeman of the appelant's experience that, if any question of the propriety of the investigation were to arise, suspicion of impropriety was likely to be heightened by discovery of any failure in compliance with the prescribed procedures. 5. A request by a member to another member of lower rank that the latter commit a breach of discipline places the subordinate in a difficult position. Further, it is destructive of the bonds of trust and reliance which should link the different ranks of a disciplined body of men. This was a serious breach of discipline. It was submitted, upon the basis of allegations contained in written submissions on behalf of the appellant, that this charge was 'brought against the appellant in consequence of improper use of their authority by superior officers who have wronged him in the past and seek still to do him harm. These allegations were really irrelevant to the question the Tribunal has for decision : the appropriate penalty for a breach of discipline the factual elements of which the appellant admits. But in any event the allegations were not the subject of evidence before the Tribunal. The most the Tribunal can take from them in favour of mitigating the appellant's punishment is that for some years before the commission of the breach of discipline the appellant had been involved in very painful litigation arising out of the performance of his police. duties, including two criminal trials of an indictment against himself. Ina number of these court cases the appellant was in conflict with members of the Australian Federal Police of higher rank than himself. He was suspended from duty from February 1977 until September 1982. For a substantial period the health of the appellant has been poor. He has suffered acute anxiety and depression. He has 6. been in receipt of payments in respect of sick leave entitlement or under the Compensation (Commonwealth Government Employees) Act 1971 since August 1985. The Tribunal had evidence of the appellant's very satisfactory performance of his duties from the time when his suspension terminated until his ill-health prevented him from continuing on duty. The evidence does not. justify any finding that any corrupt motive induced the appellant to request Senior Constable Hobart to delay reporting the offence. The breach of discipline is in the Tribunal's opinion to be regarded as a gross error of judgment by a man whose capacity for sound judgment had probably been impaired by the very trying experiences of the seven years which preceded his commission of the disciplinary offence. In all the circumstances I consider the appropriate penalty to be that the appellant be fined $500. { i Paes ben rT