f { ad [1188] AFPDT 4 " IN) THE FEDERAL POLICE ) ) No. FPNT 3 of 1988 DISCIPLINARY TRIBUNAL ) COMMISSIONER OF POLICE against SENIOR CONSTABLE MELVILLE GEORGE KNISPEL DECISION TRIBUNAL: MR B.R. MAGUIRE, Q.C. NATE 3 14 September 1988 PLACE : Brisbane THE TRIBUNAL FINDS: That the Respondent, Senior Constable Melville George Knispel, a member of the Australian Federal Police, is guilty of the disciplinary offence of which he was charged, namely being negligent in the discharge of his duties as charged in notification number 27/8788. AND THE TRIBUNAL ORDERS THAT: 1. The remaining four charges in notifications numbered 25/8788 26/8788, 28/8788 and 29/8788 be dismissed. 2. The proceedings be remitted to the Commissioner for the imposition of a penalty. By the Tribunal, —~s REGISTRAR The respondent, Senior Constable Melville George Knispel, came before the Tribunal on 26 June 1988, the first day of a hearing which is now in its sixth day. He was then facing allegations, five in number, which had been referred against him by the Commissioner of Police. Of those five, only one survives and that in an amended form. Notification number 26/8788, notification number 28/8788 and notification number 29/8788 were withdrawn at an earlier stage of the proceedings. Notification number 27/8788 was amended without opposition so as to include certain of the allegations of negligence contained in two of the previously withdrawn notifications. No point is taken about duplicity in the notification as it now stands. As of the fifth day of the hearing there were then on foot two notifications against the respondent. They were 27/8788, which contains an allegation of negligence in the discharge of duty, which is particularised in three different respects, and, secondly, notification number 25/8788, which contained certain other allegations. I need not concern myself with the gravamen of those allegations because on Tuesday, 13 September 1988, which was the fifth day of hearing, the respondent having admitted his guilt of the offence against paragraph 18(1)(c) as charged (in notification 27/8788), the Commissioner withdrew the only other i, surviving LEASES ah The Complaints (Australian Federal Police) Act section 67(3) requires me to make a finding in the light of that admission of guilt and it further requires me to inform the Commissioner in writing of my findings in the proceedings and then to remit the proceedings to the Commisisoner for the imposition of a penalty. The member having admitted his guilt, I find him guilty of the breach alleged and I shall endeavour to set out the history of the matter and my findings about the facts of the case and Senior Constable Knispel's involvement in it so that the Commissioner may be better able to apply his mind to the question of penalty, which is for his determination and his alone. The negligence in the performance of his duty to which Senior Constable Knispel has now pleaded guilty is not the only neglect of duty by a servant of the Commonwealth of Australia in relation to the matters with which the Tribunal is here concerned. There is a number of officers of the Customs Service whose conduct has been canvassed here. I regard it as appropriate to make findings of fact in relation to some of those Customs officers, so that the Commissioner can look to the relative degrees of responsibility which might fall on Senior Constable Knispel and those persons and might look at the penalty, if any, that has been imposed on those persons in the Customs Service. The President to the Tribunal (Kelly J.) in a recent decision of Lacey _v. Commissioner of Police, 11 March 1988 (unreported) has made it clear that the Commissioner in assessing penalty should take into account the penalty, if any, imposed upon other wrongdoers associated with the matter in respect of which the respondent to proceedings under the Complaints (Australian Federal Police) Act is to be dealt with. (See page 23 of the President's reasons for decision in the case referred to.) These proceedings arise out of the importation by a business house called Owen Guns of 200 Chinese firearms in 1987. One of those firearms was tendered in evidence before the Tribunal and became exhibit 22. One cannot look at the conduct of the respondent, Senior Constable Knispel, without having regard to certain historical matters that preceded the importation of those weapons and his dealing with them, as he undoubtedly did, on 24 March 1987. It is necessary to go back to October, 1986. "It was in that month that the respondent took over at Brisbane the position of firearms testing officer from his predecessor, one Senior Constable Underhill. Prior to taking over that position, the respondent had had experience with firearms as a serving military officer and as a member of the Australian Federal Police. He had also had some training in Canberra in a firearms course put on for the purpose of training people for the very job that he was about to embark upon. On 2nd February, 1987 the respondent, his predecessor, Constable Underhill, some members of the Queensland Police Force, and Senior Investigating Officer Turner of the Customs Service visited the Ansett Bond where they examined a number of firearms which, as the evidence discloses at page 278, were part of a consignment to a business house in Brisbane called Jetohart. One weapon from that consignment was tendered in evidence before the Tribunal and became exhibit 21. The respondent on that occasion appears to have examined the Jetohart weapons and to have come to the conclusion that they were prohibited imports. In support of that conclusion, he endorsed on the appropriate Customs paperwork, which became exhibit 24 before the Tribunal, the words "originally designed as automatic weapon converted to semi-auto". His decision to so categorise the weapon in the Jetohart consignment appears to me to have been entirely in accord with the Customs (Prohibited Import Regulations) made by the Minister for Science on 9 March 1987, which deal, amongst other things with "104 weapons of a machine gun construction and parts therefore unless for official purposes". Shortly after Senior Constable Knispel took those steps at the Ansett Bond, the officer in charge of the scientific branch, Detective Inspector Kendall, and a member of the ballistics section, Detective Senior Constable O'Rourke, arrived from Canberra in Brisbane on 9 February 1987. Their purpose in coming to Brisbane appears to have been unrelated to weapons of the kind that the Tribunal is here concerned with. However, Kendall and O'Rourke visited the Queens Bond on the following day and there inspected weapons which were part of the Jetohart consignment. Senior Constable O'Rourke gave evidence before the Tribunal both as to certain matters of fact and as to matters of scientific expertise. I accept Senior Constable O'Rourke's evidence on all the questions of fact to which he deposed, and I accept his expertise to deal with matters of a technical and scientific nature relating to firearms. He told the Tribunal at page 115 that he had gone to the Bond to demonstrate to the respondent the correct method of identifying Chinese-type 68 rifles and that he performed that demonstration in company with the respondent, Inspector Kendall, and Customs Officer Turner. He had referred to the basic identification, and the three features which he says he drew to the attention of the respondent are set out on page 116 of the transcript. They are the knurled knob on the top of the barrel, the selector lever in front of the trigger, and the facility for a detachable box magazine. He gave evidence, at page 122, about certain modifications that had been made on those weapons since their original manufacture. He told me: "It was for his own interests sake on how the weapon worked, the fact that those modifications had been done to the weapon, or the fact that the trigger mechanism was even present was a secondary consideration. It was the identification of the weapon itself, not the condition that it was in at the time he examined it, that bought it to our notice; the fact that the weapon was constructed as a machine-gun was what we wanted to identify. We did not want to know even if the weapon was incapable of firing was immaterial to the original identification of it." At page 124, Senior Constable O'Rourke told the Tribunal: "I stressed that he was to contact by telephone Sergeant Prior or myself as soon as he became aware of these type of weapons being in Queensland." The reference to Sergeant Pryor is a reference to Detective Senior Sergeant Pryor, who is the Officer in Charge of the Firearm Safety Testing Unit in Canberra and the immediate superior of Senior Constable O'Rourke. Pryor also gave evidence before the Tribunal. I accept his evidence. Following the visit to Brisbane, Detective Senior Constable O'Rourke returned to Canberra, and on the following day he despatched to Brisbane and elsewhere a visual display unit message which was printed out in Brisbane and became exhibit 3 in the proceedings before the Tribunal. For the purpose of the investigation by the internal investigation division, which preceded the institution of these proceedings, the respondent was interviewed over three different days in May of 1987 by Station Sergeant (as he then was) Law. A transcript ot he tape sound of that interview was prepared and tendered in these proceedings as exhibit 1. At page 8 of that transcript it is clear that the respondent acknowledges that he received that message. The message enjoined those receiving it to advise the ballistics unit (ie Canberra) by telephone before passing any military self-loading weapons. It happens that shortly prior to those events at the Bond in Brisbane, Owen Guns ordered the 200 weapons referred to. They were invoiced to Owen Guns in a document (a copy of which became exhibit 6) on 5 February 1987. It appears from the evidence that by 19 March 1987 the weapons had not yet arrived in Brisbane, but certain paperwork relating to them was in Brisbane, and on that day Mr. Owen of Owen Guns appears to have presented himself at the Department of Customs for the purpose of having Customs clear the weapons. He was attended to by one George Alfred Hewitt who gave evidence before the Tribunal. Mr. Hewitt's position at the time he was dealing with Owen, was that of Consumer Protection Officer. It is not necessary to canvass all the technicalities of the paperwork that was dealt with by Mr. Hewitt on that day, nor the resort that he had a computer, or computers, which appear to form part of the customs service system of management. However, it is sufficient to say that the effect of the regulation referred to above had not been injected into the computer system, that is, when Mr. Hewitt was dealing with the computer there was no reminder proferred to him by the computer that would have, and should have, compelled him to raise a query memorandum in relation to these firearms. It seems to me that there must have been, at some stage, some default by an unknown (to me) officer of the Customs service in not injecting that element of control into the computer system. However, Mr. Hewitt was, nonetheless, aware of the restraints on the importation of such weapons. He, being new to this particular job, had informed himself, as he told me, page 306, from a manual from Canberra that - had he remembered it - would have persuaded him to raise a query memorandum and then invoke the attentions of the firearms testing officer. None of that happened. That was partly the fault of the programming of the computer, and partly the neglect of Mr. Hewitt. The weapons then were, in fact, released into the custody of the importer, Owen Guns. It is not possible for me to say on what date that happened, but it is clear that by 24 March 1987 the 200 weapons, were at the Underwood premises of Owen Guns. Underwood is one of the three places where Owen Guns transact their business, the other two being at Gympie and at Rockhampton. If the Customs procedures had been properly carried out, Senior Constable Knispel would have been invited to examine these weapons before they could be released to Owen Guns. What happened, in fact, was that the weapons were released, and thereafter Mr. Owen telephoned Senior Constable Knispell to tell him that he had the weapons, and Senior Constable Knispel then travelled to Underwood where he examined the weapons at Mr. Owen's premises. This examination took place on the same day as the telephone call to which I have referred, and on the same day, namely, 24 March 1987, Mr. Knispel brought into being a document which became part of exhibit 7 in these proceedings. In that document, he certified, in effect, that the 200 weapons had passed all aspects of the safety test. He had made no reference in that document to the question of whether they were or were not of machine gun construction. Why he went to Underwood after Customs had released these weapons; why he conducted the test; and why he issued that certificate, which seems to have been in direct contradiction to the view that he took in relation to his earlier examination of the Jetohart weapons on 3 February 1987 remain to me a mystery. However, there is no doubt that that is what he did. On the evidence before me from Detective Senior Constable O'Rourke, and from Detective Senior Sargeant Prior, I am satisfied that, for practical purposes, there is no difference between exhibit 22 and exhibit 21. Each of them, properly assessed, is caught by the regulation made on 9 March 1987. There is a further element of the Commissioner's case against the respondent that has to do with what I would call a safety catch. Senior Constable O'Rourke expressed the view (at page 140 of the transcript) that the safety indications in relation to the selector lever on exhibit 22 were inadequate. The respondent had been questioned by Station Sargeant Law in relation to that matter, and in exhibit 1, at page 69, he seems, in his answer to 10. question 498, ultimatley to have accepted the O'Rourke view about that particular feature of these weapoons. It is clear that the respondent made no telephone call or other attempt to communicate with his superiors in Canberra when he saw these — Underwood. It is also clear that he passed them as safe, notwithstanding the defect in the safety indication referred to by Detective Senior Constable O'Rourke, and it is equally clear that he passed the whole shipment as being not of machine gun construction. Those three circumstances amount to the three heads of negligence particularised in notification 27/8788 as amended, to which notification the respondent has now pleaded guilty, and I find him guilty of that matter. I referred earlier to the defaults of the Customs officials involved, and I regard it as important that I should make some findings about that, so that the Commissioner of Police can the better assess the penalty that he will in due course impose upon the respondent. I have already mentioned the role of Mr. Hewitt in this chapter of events. It is clear that the weapons passed out of the Customs hands without any Australian Federal Police protection as a direct result of the carelessness of Mr. Hewitt. His punishment, on the evidence before me, appears to have been a promotion. (See transcript page 301). The role of Mr. Turner in this matter has also to be considered. He gave evidence before the Tribunal, but in the circumstances ll. that arose on the fifth day of the hearing, his evidence was not completed. It therefore seems to me to be impossible for me to make any findings of fact adverse to Mr. Hewitt, simply by reason of the fact that his evidence remains incomplete. However, I will refer to his evidence, because it is significant in relation to the recovery or otherwise of these 200 weapons from Mr. Owen. The ballistics section in Canberra, having been alerted to the release of the weapons on 3 April 1987, the Customs Department was, in turn, alerted by the Australian Federal Police in Canberra, and ultimately, on 9 April 1987, Mr. Turner went to the Owen Guns premises at Underwood. That evidence appears at page 267. At those premises, he seized 31 of the 200 weapons. It is agreed between the parties that ultimately a total of about 50, including those 31, were recovered. What has concerned me about the role of the Customs Department is this: that it became clear to Mr. Hewitt that Mr. Owen, of Owen Guns, probably had some of the outstanding weapons at his other premises in Rockhampton and in Gympie. According to the evidence Mr. Turner gave before me, and I accept him on this point, Mr. Owen would not tell Mr. Turner, on 9% April, whether and where he had any remaining weapons. I would have thought, in those circumstances, it would be a matter of grave urgency for the Customs Department to move as quickly as possible to the other two places where Owen did his business. In fact, on the evidence before me, they did not move until 14 April, when Turner himself and others raided the Gympie premises, and other officers raided the premises at Rockhampton for the first time, and also at 12. Underwood. In all instances, the cupboard was found to be bare. I asked Mr. Turner, at page 284, about this extraordinary delay, and the consequences of it. He told me that he was not given permission to go to the other premises until the 14th, and that the superior who did not give him that permission until the 14th was a Mr. Curtin. He agreed with me that he was anxious to go to Gympie to get these weapons, but that he had been prevented from doing so sooner. I am not told what fate has befallen Mr. Curtin, but it should not be difficult for the Commissioner of Police to inform himself what punishment, if any, has been ineted out to Mr. Curtin. Finally, I simply draw to the Commissioner's attention the character evidence that was adduced before the Tribunal on 13 September. At this stage I do not have the advantage of the transcript, but it should become available by the time the Commissioner comes to deal with the question of penalty. Chief Superintendent Gillespie, who is the Officer-in-charge of the Northern Region has known the respondent for 10 years and has been associated with him closely, as I understand him, throughout the whole of that 10 years, except for a period of 2 years when Mr. Gillespie was himself on a posting in the Eastern Region. He spoke highly of the respondent and in particular he dealt with the respondent's work as the regional welfare officer for members of the Australian Federal Police. He told me that he had no reason to question the respondent's honesty and he used the word ? 13). "diligent" in his description of the respondent. Chief Inspector Wendler also gave evidence. She has known the respondent for some years and indeed they worked together at the Brisbane Airport at a stage when she was the Officer-in-charge of the Australian Federal Police establishment there. She regarded his work as being of a satisfactory standard. She amended that to "good standard". She said that he can be relied upon to do his job and that he is punctual and obliging. Those are matters that I Siliply place on record. I dismiss all the matters except 27/8788, and in relation te that one I find the member guilty and I remit the proceedings to the Commissioner for the inposition of a penalty. It can be noted that no application is insde on behalf of the respondent for any order as to costs. Accordingly, I make no order as to costs. B.R. MAGUIRE,-0.C> MEMBER"