[9ST] AF PDT 6 ~ IW THE FEDERAL POLICE ) , 2 No. FPDT 1 of 1987 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against STATION SERGEANT TERENCE KEVIN PAFF DECISION TRIBUNAL: Mr B.R. Maguire, @.C., Member. DATE: 25 September 1907 PLACE: Canberra THE TRIBUNAL FIWDS: Tnat the Respondent, Station Sergeant Terence Kevin Paff, a member of the Australian Federal Police, is not guilty of the disciplinary offence of which he was charged, namely, acting in a manner likely to bring discredit to the reputation of the Australian Federal Police. AND THE TRIBUNAL ORDERS THAT: HE The said charge be dismissed. rar The Commonwealth pay the Respondent's costs. By the Tribunal, IN THE FEDERAL POLICE ) ) No. FPDT 1 of 1987 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against STATLON SERGEANT TERENCE KEVIN PAFF REASONS FOR DECISION TRIBUNAL: Mir BR. Maguire, Q.C., tlember DATE: 25 September 1987 On the afternoon of 10 August 1986 there were two Ford Falcon motor vehicles proceeding in the same direction in Beaurepaire Crescent, Holt. Driving the front vehicle was the respondent, Sergeant Paff. He was accompanied by his daughter. Driving the rear vehicle was the male complainant, Francis Albert Martin, who was accompanied by firs bhiartin and by his daughter, Heather Martin, the female complainant in this matter. The road at that point, and for the whole of the relevant stretch of road, was divided by a median strip. There was sufficient room on the carriageway in the direction in which the two vehicles were travelling for one of them to overtake the other. Although it would ordinarily be regarded, I understand, as a single lane, there was, on all the evidence, sufficient room for the Martin vehicle to overtake the Paff vehicle. Sergeant Paff intended to make a right hand turn at an intersection that they were approaching. He was aware of the vehicle that was following him, and aware that it was very close to him. The Sergeant therefore took the eminently sensible course of slowing down and deviating to the left. That was intended by him as an invitation to the driver of the following vehicle to overtake. That invitation was so understood by the driver of the other vehicle, fir Martin; that is, he understood, from the actions of the vehicle in front of him, that the driver of it was clearing the way for him, Wr Martin, to overtake. Why he did not do so, I do not understand. He was asked about this in the course of evidence that he gave yesterday, and he advanced as his reason the fact that the road was curving sharply to the left and he thought that they might suddenly come upon a parked car. That, of course, would not have been fir Martin's problem; that would have been Sergeant Paff's problem. And as Sergeant Paff had already demonstrated a willingness to slow down in the interest of safety, one can only assume that being confronted with a parked car he would have stopped if it were not possible with safety, by reason of Mr Martin's presence outside him, to continue in the way that he was. However, fr bhiartin chose not to overtake but to continue behind Sergeant Paff for the time being at least. Further on, at a point in the road avout which there is a conflict of evidence, Mr Martin commenced to overtake. He says that some distance short of the upcoming intersection the Paff vehicle deviated to the right and there was a very minor collision between the two vehicles. On Sergeant Paff's evidence, which I accept, the deviation to the right was part of his - the sergeant's commencing to turn right at the intersection ana I accept his evidence that that was the point on the road, namely approaching the mouth of the intersection when he deviated to the right. I accept Mr Martin's evidence that he did not see any signal given by the electrical devices on the Paff vehicle. However, I find as a fact that Sergeant Paff did indeed give a signal before commencing to deviate to the right. Of course, one is all too familiar with the spectacle on the road of a vehicle deviating to the right and the signal coming a second or so later. That can hardly be the case here. The Sergeant was, on all the evidence, acutely aware of the presence of the other vehicle behind him. He was aware that the other vehicle was very close to him. He had done his best to relieve himself of the burden of having that vehicle behind him when he was about to make his right hand turn. It just defies reason to suggest that he would not have given the signal that he says he did before he commenced a turn to the right. Fortunately, the impact scarcely removed a coat of paint from either vehicle. Following the impact both vehicles were drawn up at the side of the road and there then commenced the first of a series of conversations between the respective drivers. Te Ws important to note that Mr Martin had the best reasons in the world for wanting to get away from the scene of this accident. He says, and I believe him, that he was anxious to make certain preparations before nightfall so that he and his wife could Leave the next day for the long and arduous journey to fjiildura in order to enable Mrs Martin in particular to afford some assistance to a member of the family who had some illness. Reason and commonsense would have dictated to fir Martin that all he need do was simply tell that to the other driver and exchange particulars with the other driver and he would have been on his way within a minute - perhaps a minute and a half. However, that did not suit Mr Martin. In my view, having been the sole cause of this impact, Mr Martin formed a determination at all costs to shift the blame and he then proceeded to behave in a fashion that, in my view, does him no credit. There is a vast range of conflicts in the evidence between Mir Martin's account of what happened and Sergeant Paff's account of what happened. I have to say that wherever they are in conflict I reject Nr fiartin and I accept Sergeant Paff. fir Martin has a regrettable lack of capacity to communicate by means of the spoken word. That, of course, is partly the cause of the misunderstanding on his part that led to these proceedings being brought. His ability not to understand the language shows itself even to the extent that when he uses ordinary English words he does not understand the ordinary plain meaning that the hearer must attribute to those words. Let me given an example. Early in his evidence in-chief, yesterday, Mr Martin had this to say of his first converstion with Sergeant Paff: Would you please give me your name, address and insurance company? Or words to that effect. That is, he was giving his own account of his own words to the sergeant at the outset of their first encounter following the collision. There was no suggestion in the evidence in-chief that there was any other converstion at that point about particulars. Indeed there was no suggestion at all that there was any question arose about exchanging particulars. However, by the end of his evidence and because it suited him, fir Martin was seeking to say that he had at the outset offered to exchange particulars. That of course is the very thing that he had not done and it is at the very basis of the bringing of this case that he did not do it. When challenged by the tribunal about the evidence that he had earlier given and his attempt now to put a completely different meaning on the words that he had given he seemed to me to be scarcely capable of understanding the distinction. It is plain that Mr Martin was determined that he would assert his view of the cause of this accident and have it accepted by the other driver. He did not, of course, at that stage know who the other driver was. In the course of seeking to justify his proposed actions Mr Martin told the other driver that he had had advice from a person in his car who was a member of the constabulary and he used that language in the present tense. I accept the sergeant's evidence that that is what Mr Martin said, and I am compelled to find that Mr Martin was not telling the truth when he said that to the sergeant. His daughter had been at some time in the past a constable of police. She was not at that time, and it is clear that Mr Martin was seeking to distort the truth in order to make some sort of impression of authority on the other motorist. That was unworthy of him. It was that fact which induced the sergeant for the first time to reveal his own identity. He had not done so to that point of time and it is to his credit that he had not done SO. He was there in his private capacity. He had summoned the police. He had not sought to use his position as a member of the police force and indeed a station sergeant at all. However, when taunted by iir Martin with this false suggestion that there was a member of the constabulary in the Martin vehicle he was constrained to reveal his identity as a member of the police force. He did not reveal his rank. Thereafter in a further attempt to get the upper hand ir Wartin introduced the name of a sergeant of police to the conversation. He protested yesterday that that was not done in order to amount to some kind of Lever. It is hard to see that it was done for any other purpose. The picture I get of the scene at beaurepaire Crescent if of Mr Martin being as unco-operative and as unpleasant as he could in order to seek to get the upper hand over the other motorist. It is quite clear to me that he made no offer to provide particulars of himself until a very short time before the arrival of the accident squad, and interestingly enough, after the departure of Miss Martin from the scene. The sergeant was therefore faced with circumstances in which an offence had been committed - at least one offence by fr Martin arising out of the way he had driven his vehicle and caused this impact - and all the sergeant knew about [ir Martin or his vehicle was the number on the number plate affixed to that vehicle. He had no other particulars and it is plain that for a period that Must bave been of the order of half an hour, Mr Martin gave him no other particulars. I accept the sergeant's evidence that he believed that he was entitled to proceed by way of arrest in those circumstances. Plainly, the only route to the identity of the other driver was possibly via the number plate on the vehicle, but the sergeant was in no position to be certain that that number plate would lead him to the identity of the other driver. But his own view was - and I accept it - that he believed that he was entitled to proceed by way of arrest. Having formed that belief he communicated it to Mr Martin, who thereupon elected to remain at the scene, feeling himself to be under some kind of constraint as a result of the threatened arrest by the sergeant. firs Martin's evidence throws very Little Light on any of the issues before the tribunal and I can pass over her without further reference. The female complainant, Heather Martin, gave evidence about a number of issues. She certianly corroborates the evidence that the sergeant said to her father: "If you try to leave I will arrest you." It is interesting, however, that so far as her evidence goes that is the first part of any conversation between the two drivers that she heard. Having heard it she formed, quite falsely, a view about what the circumstances were. In fact, having not heard the earlier conversation between her father and the other driver she was in no position to form a view about what the circumstances were. But that did not deter her. She intervened in the matter and then rather remarkably went away to make a number of telephone calls which, as I understand her evidence, were designed to enlist support for the view which she had formed that her father ought leave the scene, notwithstanding the threat of arrest that had been made by the sergeant. One can scarcely imagine what her motives were. It is simply sufficient to note that had she been successful in persuading her father to leave the scene, it is quite clear that he would have finished up in custody. I think the most helpful part of Miss Martin's evidence, so far as the tribunal is concerned, is something she said - and I think this was said in her written complaint at the time, as distinct from the evidence she gave yesterday, that as her father got out of the car she felt a hope that her father would go easy on the other driver. That provides a revealing insight into lir Martin's personality, and it certainly accords with the view I have formed about him. Tne offence under the regulations which is alleged against Sergeant Paff alleges that he acted in a manner Likely to bring discredit to the reputation of the Australian Federal Police and it is particularized in two ways. Firstly, that he threatened to arrest Wr fiartin, and secondly, that he acted in an intimidatory manner towards fir Martin and Miss Martin. I find as a fact that Sergeant Paff believed that he had the right to arrest Mr Martin in the circumstances that prevailed throughout most of the interval that elapsed between the impact and the arrival of the investigating police, and I am not persuaded that he acted in an intimidatory manner towards either of the two complainants. iiss Martin gave some evidence which I do not have notea but I think she said something to this effect that the sergeant had inquired of her, "Who are you?" This was immediately after she had chided the sergeant about circumstances of which she was completely ignorant. I do not see why the sergeant was not entitled to ask her who she was ana { do not see how that could amount to his behaving in an intimidatory manner towards ter. it is interesting to note that when the investigating police arrived one of them asked lir Martin whether he wished to make a complaint about Sergeant Paff. That question was, even on fir Martin's evidence, answered in the negative. It is also interesting that the first complaint made against the sergeant was made by the daughter at a time when Mr Martin was away from Canberra and at Mildura. It was followed by his own complaint some days Later. There is no doubt in my mind where the merits lie in this case and I simply want to say that the sergeant's behaviour fits exactly with the kind of record that the evidence discloses he has. He has been decorated for 15 years good conduct in the force and in addition to that he has been decorated for bravery, having been awarded the Bronze Nedallion by the Royal Humane Society of Australasia. 10. It is a pity that somebody like Nr Martin who ought to know better should have been the instrument of having this charge brought in circumstances where there was no justification whatever for the allegations. I dismiss the charge and I order the Commonwealth to pay Sergeant Paff's costs. B.R.~ MAGUIRE, @ MEMBER