[iae@T] AFPDT 7 IN THE FEDERAL POLICE ) DISCIPLINARY TRIBUNAL ) No AFPT 3 of 1987 The Commissioner of Police against Sergeant Christopher Ziino DECISION TRIBUNAL: Magistrate J.J. Dainer RFD DATE: 24th December 1987 THE TRIBUNAL DECIDES THAT: 1. Sergeant Christopher Ziino is guilty of the breach of discipline alleged in the Notice dated 27th July 1987 signed by the Commissioner and bearing identification number AFP 6/8788. Sergeant Christopher Ziino is not guilty of the breach of discipline alleged in the Notice dated 27th July 1987 signed by the Commissioner and bearing identification number AFP 7/8788. Matter No AFP 6/8788 be remitted to the Commissioner for consideration of penalty. No order be made as to costs. THE FEDERAL POLICE ) DISCIPLINARY TRIBUNAL) No. FDT 3 of 1987 The Commissioner of Police against Sergeant Christopher Ziino Reasons for Decision 24th December 1987 Sergeant Christopher Ziino (the respondent) was charged by the Commissioner of the Australian Federal Police on 27th July 1987 with two alleged disciplinary offences: ali A breach of paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations in that he, on or about 20th November 1985, at the Sydney District Court, Darlinghurst in the State of New South Wales, being a member of the Australian Federal Police, was careless in the discharge of his duties in that he did allow a document that was prejudicial to the sentencing of Jan Henrik Paulsson to be included in the 'hand-up brief' to Judge Knoblanche. A breach of paragraph 18(1)(g) of the Australian Federal Police (Discipline) Regulations in that he, on or about 20th November 1985, at the Sydney District Court, Darlinghurst in the State of New South Wales, being a member of the Australian Federal Police, did act in a manner likely to bring discredit to the reputation of the Australian Federal Police, in that by allowing the inclusion of a prejudicial document in the 'hand-up brief' to Judge Knoblanche, resulted in Judge Knoblanche in having to disqualify himself from further hearing the matter of the sentencing of Jan Henrik Paulsson. Notices alleging commission of the disciplinary offences were served on the respondent on 4th August 1987, and, by notice in writing dated 18th August 1987, the respondent stated that he did not admit the truth of the matters alleged and requested that the matters be heard and determined by the Federal Police Disciplinary Tribunal. The hearing took place before me in Sydney on 23rd October 1987. The Commissioner was represented by Mr Wilson of counsel and the respondent by Mr Waselenia of counsel. I advised counsel that I would deliver a written judgement after receipt of the transcript and giving the matter due consideration. Regrettably, the preparation of the transcript was, for reasons which are unclear, delayed, and I did not receive it until 22nd December 1987. The essence of the case against the respondent was that, as the officer in charge of a drug prosecution against one Jan Henrik Paulsson, he had allowed to be included in a brief of evidence handed up to Judge Knoblanche in the District Court, Darlinghurst, a document which referred to an involvement by Paulsson in drug prosecutions in Denmark, for which a warrant had been issued for his arrest by a Danish judge. On seeing the document, consisting of two pages relating to the same information, His Honour discharged himself from further hearing the case and remanded the accused in custody for determination of the matter before another judge. The document was referred to during the course of the hearing before me as the "VDU" document. The evidence before me was that the respondent had initially prepared an antecdent report for inclusion in the hand-up brief in which reference was made to the VDU document. However, his superior officer, Inspector Young, advised him that he considered it inappropriate for such information to be included in the report and accordingly, another report was prepared, omitting any reference to the VDU document. In addition, the respondent stated in a report of 17th March 1986 (exhibit "D") that he discussed the matter of the inclusion of the 'hand-up brief' of the document in question with a Ms Henville, an officer on the staff of the Director of Public Prosecutions in Sydney who had the carriage of the matter before Judge Knoblanche. Ms Henville had advised the respondent that the document should not be included in the brief because of the prejudicial nature of its contents. On the morning of 20th November 1985, the respondent attended upon Ms Henville, who he said told him that it was her first sentencing matter. The respondent gave Ms Henville the brief, which, it seems, contained numerous original documents, for Ms Henvill's examination before the matter was called on for hearing. At that stage, it seems that the VDU document was not included in the brief. Evidence was subsequently given before Judge Knoblanche and the brief handed up to him. There was some discussion between His Honour and counsel regarding the imposition by him of a non-parole period. The respondent, in his evidence before me, said it first seemed that His Honour would proceed to sentencing in the morning, but, after the morning tea break, he indicated to those present that he wished to give the matter further thought in relation to the imposition of a non-parole period, and would therefore adjourn until after the lunch break. His Honour also indicated that he wished to retain the brief. There were four other defendants involved in the operation which resulted in Paulsson's arrest, and all had been committed either for sentence or trial. In the Paulsson brief were original documents, including such items as a Customs and Quarantine Statement, a passport, and various receipts. The respondent's evidence was that some of these original items were required in the cases against the other defendants, and when the Judge indicated his intention, the respondent believed that he might reserve his decision, principally because of his remarks regarding the non-parole period. The respondent said he was concerned the documents in the brief may become unavailable for some period of time. The respondent deposed that he accordingly requested Ms Henville to ask Judge Knoblanche whether the prosecution could be allowed access to the brief for the purpose of photocopying those original documents which were required in the other matters, and for replacing those documents with photocopies. His Honour agreed, on the understanding that the photocopying was to be done in the precincts of the Court, and that the brief, when reassembled with the photocopies, was to be returned to his chambers prior to the finish of the lunch break. It seems that the respondent had with him at the relevant time, a large file some 4 inches thick, containing documents relating to the operation which resulted in the arrest of Paulsson and the four others, an operation with the code name 'Pocket'. This file, and the Paulsson brief, were taken by him during the lunch break to a photocopying room apparently used by Court staff. A clerk unlocked the door for the respondent and he proceeded to remove the documents and items from the Paulsson file that were to be copied. He said he also removed plastic sleeves containing documents from the 'Operation Pocket' file so that those sleeves could be used to contain the original documents from the Paulsson file. He said he had about 30 items to photocopy, and was under some pressure because of the time limitations placed on the task. He commenced arranging the documents for photocopying and said that eventually there were 'documents and exhibits all over the table'. His evidence was that during this process, the document regarding the Danish warrant must have become mixed up with the Paulsson documents, although he did not know how this may have occurred. The respondent said that after the Paulsson brief had been re-assembled, with the photocopies substituting for the original documents, the brief was returned to Judge Knoblanche's chambers. The operation was completed during the lunch break, as ordered by the Judge. The respondent added that there had also been interruptions during the photocopying process, and that the machine had not been functioning properly. On 21st Nobember 1985, it seems that a message was passed to Inspector Young that Judge Knoblance had become aware of the existence of the VDU document in the Paulsson brief, and Inspector Young advised the respondent that it was understood that the Judge might disqualify himself from further hearing the matter. The matter came back before the Court on 22nd November 1985. On that occasion Judge Knoblanche advised counsel for the prosecution and the accused as follows (exhibit "C"): "After I reserved this matter and went to the papers to read it again, I found that there were two documents in it that I did not believe were in the file when it was first handed to me. When I adjourned with the consent of the learned solicitor who appears for the accused all the exhibits were returned to the Crown so that original documents might be replaced with copies. That was consented to by the defence. It appears to me that there has probably been some slip and two documents never tendered then by accident got into the papers previously tendered. I have read those documents and I returned them to the Crown. The Crown has chosen the course to allow the defence solicitor to have a look at them. Those documents would in my view, not have been admissible if objected to and one of them contained material that can be very prejudicial to the accused. I believe I can put them out of mind and not concern myself with them when I come to sentence but I do not think the accused would like that. This is a case where before I ever saw those documents I had intimated that it might well be the case that I would refuse to stipulate any non-parole period." His Honour then discharged himself from further hearing the matter, and remanded the accused in custody for sentencing before another Judge. Inspector Young reported what had happened to Detective Superintendent Sing, commander of the Drug Operations Branch in Sydney, of which the respondent was a member. Detective Superintendent Sing gave evidence before me that there was a discussion between himself and other senior officers in the Branch as to what should be done about the matter. He said he decided that the respondent should be reprimanded. It seems that this was subsequently done. Some time later, an 'official complaint' (page 19 of the transcript) was made by a "senior DPP officer' and the present proceedings ensued. The respondent joined the Commonwealth Police in January 1973, and transferred to the Australian Federal Police on its formation in 1979. After performing uniformed duties until 1980, he was transferred to the Sydney Regional Drug Squad, and has been employed in drug operations since then. He was promoted to Detective Sergeant in December 1986. Witnesses were called to attest to the respondent's reputation as a police officer. Inspector Young said he had known the respondent for over six years. He said he would describe the respondent as "being loyal, enterprising, resourceful and a very reliable member in a team concept, a very good team worker" (page 15). He said the respondent was a hard worker, who never shirked any duty, and was always available at short notice. Inspector Foster said he had known the respondent for 10 years and that he would describe him as "a hard working officer". He added he was "extremely industrious and self-motivating" (page 16). The Inspector said that the only criticism he could level at the respondent was that he "tends to get over-involved in operations. He wants to do everything and be everywhere at the one time" (page 16). Detective Superintendent Sing, earlier referred to, said he had known the respondent for nine years. When asked by counsel for his opinion of the respondent, the Superintendent replied "Detective Ziino always has been a solid performer. I would not describe him as a world beater, but he gets on with the job. He is willing and he gets the job done. I would say average to slightly above average and a hard worker" (page 19). Written testimonials were also tendered by counsel for the respondent attesting to his good character, one (exhibit G2) describing him as "hardworking and reliable". Evidence was also given as to the working conditions in the Regional Drug Squad at the time of the incident giving rise to the present charges. The respondent said he was working considerable overtime during the relevant period, up to 60 hours of duty being involved weekly. At the time of the Paulsson hearing, he was involved in a joint operation with the New South Wales Police regarding a courier alleged to be arriving in the country with a large quantity of heroin. He was also involved in the preparation of proceedings against Paulsson's four co-offenders, all of which involved committal proceedings in the Magistrates Court. Different sets of documents were required for each matter, and numerous copies or original documents had to be made. Detective Sergeant Gallagher gave evidence that he was a member of the Regional Drug Squad during October and November 1985, and knew the respondent. He said that the average overtime for members of the squad during that period was between 20 and 30 hours per week (page 13). His own diary showed that he had worked 77 hours overtime for the month of October and for the two weeks prior to 22nd November he had worked 46 hours overtime. Inspector Young said that the work-load for the Drug Squad during October/November 1985 was substantial, adding "I think we had in excess of 100 matters awaiting trial with a strength of about 45." I turn now to a consideration of the first charge, i.e., that the respondent was careless in the discharge of his duties in allowing the VDU document to be included in the 'hand-up' brief given to Judge Knoblanche. Mr Wilson submitted that the respondent's failure to check the brief before its return to the Judge after the photocopying had been done constituted carelessness. He said it was not alleged that the inclusion of the document was deliberate. Mr Waselenia submitted that the circumstances surrounding the incident were such that the inclusion of the document was merely inadvertent. The respondent was under considerable pressure to complete the task within the lunch break, he was working in unfamiliar surroundings, there were interruptions, the photocopying machine was faulty, and there was an intermingling of documents from one file to another during the process. The respondent's failure to ensure that the document was not included in the brief could not therefore be said to be the result of carelessness, but merely inadvertence. The issue to be resolved then is, whether the respondent could be said to have acted carelessly. The work 'careless' is defined in the Oxford English dictionary as meaning, inter alia, 'unconcerned, taking no heed of, light-hearted, inattentive, negligent, thoughtless, inaccurate'. Mr Waselenia's submission was that what happened was the result of inadvertence. The work 'inadvertent' is defined in the same work as meaning, inter alia, 'not properly attentive, negligent, unintentional'. Inattention and negligence seem to be common concepts in both definitions. It seems to me that the respondent's failure to check the brief, even cursorily, before its return to Judge Knoblanche does reflect the fact that he was 'not properly attentive' to the task in hand. He said he was 'astounded and upset' when he learned that the document had found its way into the brief (page 12), as he had been advised both by Inspector Young and Ms Henville that the document should not form part of the brief, nor should it be referred to in the antecedent report. In view of the conditions existing in the photocopying room at the time he was working there, with 'documents and exhibits all over the table', it should have occurred to him that there was a possibility, perhaps even a likelihood, that documents not originally in the Paulsson brief may accidentally be placed in it suring the process. In particular, he should have been alert to the possibility that the VDU document could become mixed up with the Paulsson file. I accept that while his failure to check the brief before its return to the Judge could not be characterised by some of the terms included in the definition of 'careless', e.g., 'unconcerned, light hearted, or taking no heed of', I do believe that whilst what transpired was unintentional, it was the result of his being 'not properly attentive' to the task in hand, which was to return to Judge Knoblanche the same brief which the Judge had had before the lunch break. He was, therefore, technically careless, but I would categorize the degree of carelessness as being at the lower end of the scale of gravity. It follows that the first charge is made out. I turn now to the second charge, i.e., that the respondent's conduct was likely to bring discredit to the reputation of the Australian Federal Police. In my view, there is insufficient evidence to support this allegation. Mr Wilson, submitted that it was sufficient to sustain such a charge if it could be demonstrated that persons acquainted with Court procedures e.g., lawyers, could be expected to regard the Australian Federal Police adversely as a result of what occurred. It seems that some officer on the staff of the Director of Public Prosecutions took that view, or the present prosecutions would not have ensued, and the matter would have been dealt with as decided by Superintendent Sing. However, in my view, it is not sufficient to rely on such a narrow spectrum of opinion. I should add that no one was called from the office of the Director of Public Prosecutions to give evidence. It is within the common experience of most lawyers and judicial officers that evidence prejudicial to an accused person sometimes inadvertently comes before a Court or Tribunal. What happens then is what happened in the Paulsson case: the Judicial officer persiding normally disqualifies himself and the case proceeds before another such officer. In the Paulsson case, it seems that no undue prejudice was engendered. He had pleaded guilty; he was in custody; he was facing a lengthy prison term, according to the observations of Judge Knoblanche and he was ultimately sentenced, although IO there was no evidence before me as to the details. Indeed, Judge Knoblanche expressed the view (exhibit "C") that he could proceed with the case, notwithstanding his knowledge of the VDU document, but stood aside when requested to do so by defence counsel. I believe the majority of persons familiar with Court proceedings such as the Paulsson case would agree with His Honour's assessment that what had occurred was the result of 'some slip' and put it no higher than that. I certainly do not accept that the reputation of the Australian Federal Police was likely thereby to be brought into descredit, as alleged. I accordingly find that that charge fails. I am conscious of the fact that the matter of penalty is not within my jurisdiction, but I would respectfully make a strong recommendation for clemency in this case, because of the circumstances which prevailed at the relevant time, particularly the pressure under which the respondent was working during the photocopying process, and because of his good record as a police officer. I make no order as to costs. MAGISTRATE J.J. DAINER Member = 16 =