my | fiqas| AFPOT 8 IN THE FEDERAL POLICE ) No. 4 of 1988 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE Against: ROBERT FRANK BENISTON MAGISTRATE J.J. DAINER, AM RFD, MEMBER 31ST AUGUST 1988 CANBERRA, A.C.T. REASONS FOR DECISION At the conclusion of the hearing of the charge against Senior Constable Robert Frank Beniston I advised the parties that I intended thereupon to hand-down my decision and the reasons therefor in view of my impending absence from duty for some ) four weeks. ' Accordingly an extract from the transcript of the proceedings, containing my decision and the reasons for making such decision, is attached herewith, in accordance with Section 76(5) of the Complaints (Australian Federal Police) Act 1981. . IN THE FEDERAL POLICE ) No. 4 of 1988 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE Against: ROBERT FRANK BENISTON FINDING MAGISTRATE J.J. DAINER, AM RFD, MEMBER 31ST AUGUST 1988 CANBERRA, A.C.T. THE TRIBUNAL FINDS THAT: - hie Senior Constable Robert Frank Beniston is not guilty of the breach of discipline alleged against him in charge AFP:36/8788 which alleged that he, on the lst January 1988, at the National Exhibition Centre, Lyneham, in the Australian Capital Territory, had acted in a manner unbecoming a member of the Australian Federal Police in that he threatened, harassed and intimidated Darryn Johnson. IN THE FEDERAL POLICE ) No. 4 of 1988 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE Against: ROBERT FRANK BENISTON ORDER MAGISTRATE J.J. DAINER, AM RFD, MEMBER 31ST AUGUST 1988 CANBERRA, A.C.T. THE TRIBUNAL ORDERS THAT: - Res The Commonwealth of Australia pay to Senior Constable Robert Frank Beniston the costs of these proceedings incurred by him. I propose to give my decision now in an ex tempore manner, principally because I will be absent for almost five weeks from the Territory and do not wish to delay the matter for that period of time. I have a clear idea of what I propose to do and will now proceed to do it. I am obliged to give my reasons for decision in writing. That requirement is contained in the Complaints (Australian Federal Police) Act section 76 sub-section 5, which, leaving out the parts that are not relevant, states: The Tribunal shall in a proceeding heard by it (in circumstances which existed in this case) give reasons in writing for its decision and those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based. What I propose to do is to ask that a transcript of what I am now about to say be prepared for forwarding to the Commissioner, as is required under the Ordinance, and to other parties who are involved in this matter, and that will constitute my reasons in writing, as well as my decision. The charge before the Tribunal reads as follows: That on the First day of January 1988 at the National Exhibition Centre, Lyneham, in the Australian Capital Territory, Senior Constable Robert John Beniston, a member of the Australian Federal Police, did act in a manner unbecoming a member of the Australian Federal Police in that he did threaten, harass and intimidate Darren Johnson. That charge was preferred against Sen. Const. Beniston on 24 May 1988. A copy of the charge became Exhibit 1. The charge was accompanied by a number of documents which are listed in the document which becamme Exhibit 2. On 9 June 1988, Sen. Const. Beniston advised in writing that he did not admit the truth of the matters alleged in the charge which I have read out, and he also requested that the proceedings be heard and determined by the Federal Police Disciplinary Tribunal. In due course the Tribunal became seized of the matter and on 10 June, the President of the Tribunal, Mr Justice Kelly, directed that I proceed with the hearing of the charge. On 24 June a directions hearing was held which resulted in the matter coming before me as the Tribunal yesterday with the hearing being continued today. I think that sets out the background reasonably succinctly. The charge is an unusual one in some respects, in that it alleges that the manner in which Sen. Const. Beniston acted was "threatening, harassing and intimidating". I had some doubts about whether or not expressing the allegations in that way may have represented some form of duplicity, but I think on reflection it does not, because the essence of the allegation is that the conduct of the member, that is, Sen. Const. Beniston, was unbecoming a member of the Australian Federal Police, and the allegations of threatening, harassing and intimidating Darren Johnson really represent the particulars to support that charge. The Commissioner bears the onus of proof in this matter and in accordance with regulation 9, the onus is the criminal onus of proof beyond reasonable doubt. Regulation 9 of the Complaints (Australian Federal Police) Regulations reads as follows: The Disciplinary Tribunal shall not find that a member is guilty of a breach of discipline unless the tribunal is satisfied beyond reasonable doubt that the member is so guilty. There is accordingly a prohibition on finding any offence proved unless the Tribunal is satisfied of guilt beyond reasonable doubt. The circumstances in this case are also somewhat unusual, far removed in my vxespectful view from the circumstances in the case of Constable Sloane, which was referred to earlier, and a copy of which judgement I have in front of me. I think Sloane's case is, however, relevant in the sense of the test which must be satisfied by the Tribunal when determining what is "conduct unbecoming a member of the Australian Federal Police". At page 30 of the judgement in that matter, the Deputy President, Mr Justice Jenkinson, said that there were three elements of this offence: (a) one or more physical acts of the member charged; (b) each of which is a conscious and voluntary act; and ¢€¢e) which the Tribunal judges to be acting in a manner unbecoming a member of the Australian Federal Police. I think there was some emphasis in that case on the involvement of physical acts because I think a defence was there put forward that the member in that matter was incapable of forming an intent because he was intoxicated to a substantial degree. The facts in Sloane's case were that an intoxicated member of the Australian Federal Police, off-duty, threatened a taxi driver and some other citizens, and used foul and obscene language to them and put them in some fear. That offence was found proved. The factual situation in the instant case is, as I say, rather unusual. Sen. Const. Beniston was at the relevant time and still is, a member of an off-road model car club which, on the evidence, he in fact founded. The complainant, if I can call him such, and I think I should hereinafter, Darren Johnson, is 17 year old youth, also at the relevant time a member of the club. The charge arises out of what I could, I think, reasonably neutrally call an altercation which occurred at the National Exhibition Centre in Canberra on 1 January 1988, when both Sen. Const. Beniston and the complainant were involved in the racing of off-road model cars in connection with their involvement as members of the club. It is clear on the evidence that there was some animosity between the two people involved and that had been of some long standing. There was evidence before me in the record of interview with Sergeant Smeltink and in the evidence given by other members of the club, that the complainant and Sen. Const. Beniston had had differences of opinion which went back over some period of time, and those differences had in fact caused some dissension amongst the club members generally, and in fact, there had been some efforts at reconciliation between the two, but for reasons which I do not need to go into, that did not eventuate. In any event, it seems that the Commissioner's case is based on the fact that at the Exhibition Centre on that day, Sen. Const. Beniston sought out the complainant and made threats to him and used obscene language to him, which language if believed in its entirety, could be said to constitute the elements of the offence in the way in which I have read those elements out. However, becuse of the lack of direct corroboration of either version of what occurred, that is, the complainant's version, or Sen. Const. Beniston's, one then must consider very carefully the question of credibility. As I say, there was no direct corroboration about precisely what was said by either party in its entirety. There was some corroboration of both the attitude of Sen. Const. Beniston, when the encounter took place between himself and the complainant, and of the complainant's reaction at the time. There was also evidence of the complainant's general temperament, character and his attitude to his involvement in off-road model car racing. It was said that the complainant was a person who was easily irritated, easily excited, who had in fact been heard to use obscene language in circumstances which brought disapproval from those who referred to it, and who had displayed anger and irritability on more than one occasion. On at least one occasion, he had been seen to throw his model car some distance away in a fit of anger. The complainant is a 17 year old male person. I had the impression when he gave his evidence in the witness box that he was a person of considerable maturity for that age. He handled himself under examination and cross-examination in the witness box with a great degree of composure, and I had the impression that he had above-average intelligence and above-average maturity for his age. So, I am not here dealing with the case of a juvenile still attending school being the subject of an alleged threat by a senior constable of police. I had the impression, in other words, that the complainant was a person who was quite able to handle himself in situations involving hostility. As I said if I accepted the complainant's evidence to the required degree, that is beyond reasonable doubt, I think I must inevitably be led to the conclusion that he did consider himself threatened, harassed and intimidated by Sen. Const. Beniston, and that that in turn would lead me to the conclusion that Sen. Const. Beniston's actions did constitute acting in a manner unbecoming a member of the Australian Federal Police. However, I must say that applying the test which I am obliged to apply, I could not say that I am satisfied beyond reasonable doubt of the complainant's allegations regarding the use of obscene language and the threats, except the comment which Sen. Const. Beniston conceded he had indeed made to the complainant, both during the course of the record of interview with Sergeant Smeltink, and in his evidence today, which was along these lines: "One of these days that car is going to be mine, Darren". or: "It's going to be mine soon, Darren". Or words to that effect. The complainant did allege that words along those lines were said to him and he felt threatened by that statement. He said he had inquired as to why that was being said and was told by Sen. Const. Beniston that he was in fact suing the complainant's father for defamation. It would seem that in the way the Commissioner's case was put, that the complainant was apprehensive that if Sen. Const. Beniston succeeded in such court action, he would eventually satisfy a judgement against the complainant's father by taking the car. Sen. Const. Beniston did not resile from the allegation by the complainant that he had indeed made that comment or one very similar to it. I think then I need to consider carefully whether that statement did "threaten, harass and intimidate" the complainant. Evidence was given of the complainant's reaction, and it was quite clear on the evidence of the independent witnesses, apart from the evidence of Sen. Const. Beniston, that the complainant became quite excited and angry at that stage. His face was red, he was shaking, he was clenching and unclenching his fists, and he was perspiring. It seems on the evidence of the other people who observed this that the complainant was exhibiting symptoms of anger, if not belligerence. He went to one member of the club after another and complained to them of what he said were the threats which were made to him by Sen. Const. Beniston. But, of course, as I said before, there was no direct evidence from any one of those persons of hearing those threats. Because I must apply the criminal onus of proof I am left with only the conceded allegation regarding the future ownership of the car. To me it seemed that the complainant's reaction was not one of a person who was intimidated. It may perhaps be said that he himself felt that he was threatened but his observed reaction to the conversation certainly did not give others present that impression, nor did their evidence give me that impression. Turning again to the question of credibility, it seems to me that it would be strange for a person of Sen. Const. Beniston's background and knowledge and understanding of the law, to pick a fight of this nature, or promote an altercation, or precipitate threats in such circumstances where there were, on the evidence, quite a large number of people present. It was after all a display exhibition of model cars and the evidence was that there were numbers of people, not just in the immediate vicinity, but all around that particular part of the National Exhibition Centre: a strange place to start an altercation. In any event, the Commissioner's case in my view is not made out in relation to all the allegations except the one which is not denied, so I now must decide whether or not that statement represents language which could be said to have "threatened, harassed and intimidated" the complainant. If one examines the statement it obviously indicates some sort of expression of expectation of success in the forthcoming action in defamation referred to in evidence by Sen. Const. Beniston. Any person who embarks on a court action must have some expectation of success, otherwise they would be foolish to embark on it. One familiar with the law would understand that if such a court action succeeded, and if it was intended to satisfy the judgement, a warrant of execution would need to be taken out and that would have to be enforced by the sheriff or the bailiff, depending on the jurisdiction in which the action ran. In due course property could be seized and sold to satisfy the judgement. It is not, of course, possible to take property in specie to satisfy a judgement. That seems to be what Sen. Const. Beniston was saying to the complainant, that he would satisfy a judgement for defamation against the complainant's father by taking possession of the model car, which, of course, would not be possible. I have a doubt about whether or not it could be reasonably said, applying the final test which the Deputy President has said should be applied, to say that a person in the complainant's situation, who was the recipient of such a statement could be said to have been "threatened, harassed and intimidated" with all three of those terms applying in this case. The dictionary meaning of the words has been referred to by Sen. Const. Beniston in his submission to me, and I think most people in the street would know what those words meant. I think that what Sen. Const. Beniston was really trying to convey to the complainant that he (Sen. Const. Beniston) had an expectation of success in the Court action. He put that message very badly, I thought, and I regard the comment as being misguided and unwise in the circumstances, especially having regard to his background. But to go from that point to the next point, which is a quantum jump in my respectful view, and to say that the comments represented a trilogy of "threatening, harassing and intimidating" the complainant is just too much to accept. I do not believe that it could be said that that situation did exist, and neither in my view could it be said that by making that simple comment, did Sen. Const. Beniston act in a manner which was unbecoming a member of the Australian Federal Police. Accordingly, I do not find that the charge has been made out, and it is dismissed. I would ask that a copy of these reasons and a full transcript in due course be forwarded to the Commissioner and also to the parties who wish a copy to be supplied to them.