[1I8s] AFPDT 6 IN THE FEDERAL POLICE No. F of 1987 DISCIPLINARY TRIBUNAL THE COMMISSIONER OF POLICE against CONSTABLE PETER JOHN SULLIVAN REASONS FOR FINDING MR. K.P. DUGGAN, Q.C. (Member) Ld Monk 24th February. 1988 Constable Peter John Sullivan has been charged with a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police (Discipline) Regulations. It is alleged that he contravened paragraph 13(1)(a) of the Regulations, the particulars of the charge being:- "That between the 24th day of June 1986 and the 12th day of July 1986, at Perth in the State of Western Australia, you Peter John Sullivan, a member of the Australian Federal Police, did without lawful authority or excuse communicate to Steven John Danaher, information of a police Operational nature, namely, that there was an Australian Federal Police File or investigation concerning David Francis Everett, such information that you, the said Peter John Sullivan, did acquire in the course of your duties." According to the evidence the alleged disclosure of information related to an inquiry being conducted into the activities of a man named David Francis Everett who was at all relevant times a member of the Special Air Service Regiment based at Swanbourne in Western Australia. In June, 1986 the Regiment's commanding officer and adjutant were advised that Everett may have served as a mercenary whilst on leave in Thailand. The matter was reported to the Australian Federal Police and two police officers went to the barracks on 3rd July 1986 in order to conduct preliminary inquiries. It would appear that Everett had returned to Perth on 22nd June 1986, but at the time of the visit to the barracks on 3rd July 1986, neither the Army nor police authorities were aware of this fact. Police inquiries after the visit on 3rd July revealed that Everett had returned to Australia, but his then whereabouts were unknown. In the meantime rumours of Everett's mercenary activities had spread through the Special Air Service barracks. Furthermore, the visit of the Australian Federal Police officers in a police vehicle on 3rd July 1986 had been observed by some members of the Regiment and the soldiers connected that visit with the suggestions being made concerning Everett's activities. According to Corporal Danaher, who gave evidence for the prosecution, the link between Everett and the police visit was "morning tea talk, that is how common it was." Danaher said in evidence that he was "99.9" per cent sure that there was an investigation relating to Everett. At this stage Danaher decided to ring Constable Sullivan. Sullivan has been a member of the Australian Federal Police since February 1984. In 1986 he was based at Australian Federal Police Headquarters in Perth. He has known Danaher since the middle of 1983. Danaher was a flatmate of a friend of Sullivan and Danaher and Sullivan would see each other occasionally. Danaher stated in evidence that the first telephone call he made to Sullivan concerning this matter was in late June or early July 1986. Sullivan said that it took place on the evening of 3rd July 1986. According to Danaher, he rang Sullivan in order to either confirm or dispel the rumours about Everett. If they were confirmed he would get Everett to "give himself up to the police, as such, and get it over and done with." Danaher opened the conversation by stating that he was interested in joining the Australian Federal Police and he spoke about application forms for that purpose. He then told Sullivan of the rumours around the barracks concerning Everett. He said he wanted to know whether the Australian Federal Police were interested in seeing Everett. Sullivan told him he would ring him back. In the course of examination-in-chief, Sullivan stated that he agreed with Danaher's version of this conversation. According to Sullivan he then raised the matter in general conversation at Australian Federal Police Headquarters and eventually spoke to Detective Senior Constable Buckingham of the Regional Intelligence Unit who had the conduct of the matter at that stage in that he had been asked to make some preliminary enquiries in order to assess whether a further investigation by another section was appropriate. Senior Constable Buckingham was one of the officers who visited the barracks on 3rd July 1986. At the time Sullivan spoke to him, enquiries had been made at Everett's last known address. The premises were unoccupied and Buckingham was endeavouring to ascertain Everett's whereabouts. Although the evidence is not clear on the point, it would appear that the conversation between Sullivan and Buckingham took place on Monday 7th July 1986. Buckingham's evidence of the conversation is as follows:- "I cannot recall exactly where it took place. It would have been in the AFP offices in Perth, but I do not know exactly where. As to the conversation, well I cannot really exactly recall that either, but I think it went along that lines that I said to Peter: I am having problems finding this guy, Everett. And I think I told him that it was a referral from the SAS and that it was something to do with a suspected mercenary. And Peter indicated - he just said, 'Well, I may be able to find out where he is.' And I said, "Yeah, that would be great, if you can,.'" Sullivan gave the following version of the conversation:- "I said, again not exactly the conversation, I said: are you interested in locating (sic) at the barracks, or have you got an interest at the barracks; Terry confirmed that he did. He said, I am looking for a fellow down there called Everett. I said - he subtantiated that remark by saying he had been looking for him for some days. I said I hve probably got an insight down there, I can find out; what is it about? He said, all we are looking for is an address or a contact." Sullivan stated in evidence that he telephoned Danaher on the evening of the conversation with Buckingham. Danaher summarised the conversation in the following terms:- "Constable Sullivan phoned me at my residential address and said that the AFP were interested in seeing my friend; that he had been a silly boy, and he went on to explain that it would be best if David Everett came in and saw the Federal Police to get it off his chest and he also requested his address and telephone number. I would like to also point out at that stage that the overtones of that conversation led me to believe that Constable Sullivan was acting in either a semi-official or official basis as it was not Peter the friend telephoning me, but Peter the policeman; that is the way I viewed that conversation." This version of the conversation was not challenged by Sullivan. Danaher stated in evidence that he told Sullivan he would pass the information on to Everett and leave it up to him to contact the Australian Federal Police. According to Sullivan, Danaher gave him Everett's telephone number in a subsequent telephone conversation with Danaher. Danaher stated that he did not pass the telephone number on to Sullivan, but I reject his evidence on this aspect. There is corroboration for Sullivan's version in that Buckingham confirmed Sullivan's claim that he gave the telephone number to Buckingham. According to Buckingham the telephone number was given to him by Sullivan on the morning of Friday 11th June 1986. By coincidence the same telephone number had been given to Buckingham by the adjutant, Captain Ellis, a short time earlier on the Friday morning. The relevant series of events concluded in somewhat ironic circumstances on the afternoon of llth June 1986 when Everett, acting on the information conveyed by Sullivan to Danaher, presented himself at Australian Federal Police Headquarters for questioning. It was decided that there was no urgent need for an interrogation at that stage and matters could be left for a day or two until, in the words of one witness, "someone was back who knew something about it". Accordingly, Everett was sent away. The case for the Commissioner of Police focused on the second telephone conversation between Sullivan and Danaher when Sullivan indicated that the Australian Federal Police were interested in seeing Everett. In my view the remarks made by Sullivan in the course of that conversation, taken in the context of that conversation and the earlier telephone conversation, implied that there was an investigation in existence concerning Everett. The main point of contention is whether this communication was made "without lawful authority or excuse". Regulation 13(1)(a) of the Australian Federal Police (Discipline) Regulations is in the following terms:- "A member shall not, without lawful authority or excuse, communicate to a person any information that he has acquired in the course of his duties." It was common ground at the hearing before me that the communication of information disclosing the existence of a particular investigation was a common and necessary occurrence in order for police officers to effectively discharge their duties. It was agreed that such disclosures could not be said to be without lawful authority or excuse. However, counsel for the Commissioner of Police argued that the unusual circumstances of this case should lead me to the conclusion that Sullivan had no lawful authority or excuse to make the disclosure concerning the existence of the investigation. In particular, he pointed out that Sullivan was not the investigating officer and he was unaware of the status of the file, so that extra caution was required. This was particularly so in view of the sensitive nature of the investigation. Counsel also stressed that it was very strange that Sullivan did not tell Buckingham about the earlier telephone conversation with Danaher. I agree that the circumstances warranted further discussion with Buckingham. The information concerning Everett's whereabouts or telephone number was not to come from a police informant in the strict sense of that term and I would expect an experienced police officer to give further particulars to Buckingham. Furthermore, it would have been wise to ask Buckingham whether the approach to Danaher anticipated by Sullivan was appropriate, bearing in mind the nature of the investigation and the stage it had reached. Nevertheless, these considerations do not have the effect of taking Sullivan's actions outside the scope of lawful authority and excuse. They are tactical questions which, in my view, indicate nothing more than inexperience. It was very properly conceded by counsel for the Commissioner that there was no improper motive in Sullivan's actions. The evidence strongly supports a desire on Sullivan's part to further the interests of the investigation. I accept that it was necessary to confirm Danaher's view that there was an investigation afoot in order to obtain the information required for the purposes of the investigation. The imparting of information by a police officer in a genuine desire to assist an inquiry cannot be said to be without lawful excuse or justification simply because of an error of judgment in the method of approaching that task. It follows that the charge relating to the disclosure of information to Danaher should be dismissed.