[asqJArPDT 4 IN THE FEDERAL POLICE Sy) ) No. 6 of 1988 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SENIOR CONSTABLE DAVID ALEXANDER NICHOLSON IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 FINDINGS THE PRESIDENT (KELLY J) 19 JANUARY 1989 CANBERRA _A.C.T. THE TRIBUNAL FINDS THAT:- Senior Constable David Alexander NICHOLSON is guilty of the disciplinary offence alleged in Charge No. AFP:9/8889, namely:- That, contrary to the provisions of paragraph 1(g) of Regulation 18 of the Australian Federal Police (Discipline) Regulations, he acted in a manner that was likely to bring discredit to the reputation of the Australian Federal Police in that he, on 14 August 1987, at the Subway Disco, Canberra, without reasonable grounds, said to Harry Mkandawire words to the effect of "I am a policeman and you are under arrest" and then physically removed him from the premises. IN THE FEDERAL POLICE .) ) No. 6 of 1988 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SENIOR CONSTABLE DAVID ALEXANDER NICHOLSON IN THE MATTER of the Complaints (Australian Federal Police) Act 1981 REASONS FOR DECISION KELLY J 19 JANUARY 1989 By notice dated 21 September 1988 Deputy Commissioner J.C. Johnson of the Australian Federal Police, acting to give effect to a proposal put to him by the Ombudsman, instituted proceedings against Senior Constable David Alexander Nicholson (Constable Nicholson) charging that he had been guilty of a disciplinary offence specified in paragraph 18(1)(g) of the Australian Federal Police (Discipline) Regulations (the Regulations). Regulation 18(1)(g) provides that a member is guilty of a disciplinary offence and is subject to punishment in accordance with the Regulations if he or she acts in a manner that brings, or is likely to bring, discredit to the reputation of the Australian Federal Police. Particulars of the disciplinary offence charged were as follows:- That Constable Nicholson acted in a manner that was likely to bring discredit to the reputation of the Australian Federal Police in that, on 14 August 1987, at the Subway Disco, Canberra, without reasonable grounds, he said to Harry Mkandawire words to the effect of: "I am a Policeman and you are under arrest" and then physically removed him from the premises. On 11 October 1988 Constable Nicholson, who had been served with the notice of intention to commence proceedings on 21 September, replied to the notice. He attached to his reply a statement concerning the incident out of which the charge arose and a minute prepared by Dr Brian Michael Dwyer, Director of Medical Services of the Australian Federal Police, addressed to the Deputy Commissioner and having annexed to it an undated statement. -2- These documents were taken, quite properly, as amounting to a denial of the charge against him. The Regulations are the prescribed Regulations within the meaning of that expression as used in s.3(4) of the Complaints (Australian Federal Police) Act 1981 (the Act) and by s.67(1) of the Act the proceedings against Constable Nicholson must be heard and determined by the Federal Police Disciplinary Tribunal established by s.54 of the Act. By an appropriate certificate, dated 14 October 1988, and given under s.68(1A) of the Australian Federal Police Act 1979 it was proved that Constable Nicholson was sworn in as a member of the Australian Federal Police on 22 October 1979 and had been a member continuously since that date, holding, at the date of the certificate, the rank of Senior Constable. He had been a member of the Commonwealth Police Force before transferring to the Australian Federal Police. Late in the evening of Thursday, 13 August 1987, Harry Mkandawire, a native of Zambia, but now an Australian citizen, attended at the Subway Disco in Canberra. He had arranged to meet a friend there. To pass the time before the appointment he went to an establishment called the City Club where he had something to drink. Leaving there he went to the Subway Disco. When he entered he found that the friend whom he was to see was not there. He bought a drink at the bar. He noticed Constable Nicholson, whom he did not then know, seated at the bar some five or six feet to his right. =e Mr Mkandawire said in evidence that Constable Nicholson asked him whether he was a student. Mr Mkandawire was not interested in joining in conversation with Constable Nicholson but replied that he was not a student. Constable Nicholson, he said, then said words to the effect of "Come on, I know you are a_e student", Mr Mkandawire became somewhat annoyed and reiterated his denial that he was a student. Constable Nicholson then said, "Do you know I am a policeman?" Mr Mkandawire replied, "I don't care if you are God, I don't want to talk to you." Constable Nicholson then grabbed him, holding his back and said, "You are under arrest". Not surprisingly Mr Mkandawire was dumbfounded. Constable Nicholson produced an AFP warrant card but Mr Mkandawire was unable to read the name on the card. He began to get worried. He could not tell if Constable Nicholson was drunk because he did not know him well enough. He asked Constable Nicholson what offence he had committed but Constable Nicholson replied, "Come with me". Constable Nicholson then started to push Mr Mkandawire up the stairs leading to street level. As the two proceeded up the stairs they met two men descending. These men were known to Mr Mkandawire as employees of the City Club. Their names were Martin Frank and Trevor Paul Finnigan and in due course they gave evidence before me. Mr Mkandawire overheard the two men asking each other what had Mr Mkandawire done. =4= Mr Mkandawire gave evidence that as they got to the last step leading from the Subway Disco, Constable Nicholson pushed him so that he fell, hurting his knee. The fall caused Constable Nicholson to lose his hold momentarily but he again resumed it and said words to the effect of "Let's go bastard, let's go." Constable Nicholson continued to hold Mr Mkandawire after he had risen to his feet and escorted him some 40 feet from the Subway Disco. At this point there were some cleaners whom Mr Mkandawire asked for help. He then saw a police car. By this time Mr Mkandawire had pushed Constable Nicholson and had broken free. He rushed over to the police car and asked whether Constable Nicholson was a policeman. He said he told the police officers in the car that Constable Nicholson had arrested him. The police officers identified Constable Nicholson as a police officer. I am not satisfied that Mr Mkandawire did tell the police officers in the car that Constable Nicholson had arrested him. Both Senior Contable Irwin and Constable Drake have no recollection that he conveyed this information to them. It seems to be inconsistent with the evidence given by Senior Constable Irwin and Constable Drake that Constable Irwin had asked Constable Nicholson what had happened, that Constable Nicholson had replied that nothing had happened but that he and Mr Mkandawire were just having a drink and that Constable Nicholson then placed his arm around Mr Mkandawire's shoulders and invited him to have another drink. Neither Senior Constable Irwin nor Constable -5- Drake seem to have considered the incident worth investigating further. Constable Irwin said that it would be a good idea if the two had a drink and then drove off. Mr Mkandawire did not appear to be frightened. According to Mr Mkandawire, Constable Nicholson said to him words to the effect of "You thought they would help you. I told you I was a policeman. I'1l buy you a drink". Mr Mkandawire replied that if Constable Nicholson had behaved like that five years before he, Mr Mkandawire, would have killed him. Mr Mkandawire then went back to the Subway Disco but the friend whom he had planned to meet was not there. Mr Mkandawire denied that Constable Nicholson had ever mentioned the word "College" while they were in the Subway Disco. There were some aspects of Mr Mkandawire's evidence which were not altogether satisfactory but generally I accepted him as a witness of truth. I accept his version of the incident. I am satisfied that Mr Mkandawire was slightly affected by alcohol but I am also satisfied that Constable Nicholson was exhibiting all the signs of substantial intoxication. Martin Frank and Trevor Paul Finnigan gave evidence which supported the evidence given by Mr Mkandawire and I accepted their evidence. Constable Nicholson gave evidence that on 13 August 1987 he had worked until 6.30 p.m. and had then gone -6- to an RSL Club. He had' been in ill health for some time and had been advised by Dr Dwyer that he should not drink alcohol because the combination of the effects of his physical condition and of even small amounts of alcohol were affecting him quite dramatically. Dr Dwyer's warning that the virus infection from which he suffered would decrease his tolerance to alcohol and that he should drastically reduce his drinking had been taken quite seriously by Constable Nicholson. Unfortunately at about 10 p.m. on the evening of 13 August 1987 he decided to have some beer. He drank two middies and then went to the Subway Disco where he had at least two cans. He had, he said, been to the Subway Disco three times before. He said that twice before he had seen groups of students and accompanying staff from the Australian Federal Police College at Barton at the Disco. He said that he had had a conversation with Mr Mkandawire and that the word "college" was mentioned. He said the conversation had lasted about 20 minutes and he then said that he was going and that thereafter Mr Mkandawire asked him to take him out of the Club. He said that he formed the opinion that Mr Mkandawire, despite his African appearance, waS a member of a New Guinea police force and that what he asked Constable Nicholson to do was part of a setup exercise being carried out by the Australian Federal Police College. He said that he took three paces with Mr Mkandawire who then said something to the effect of "not like that". He said that there was a good deal of noise and it was hard to hear. He said that Mr Mkandawire Py told him he had to hold him at the small of the back. He said he escorted him some 30 feet to the stairs but that he did not push Mr Mkandawire up the stairs. He said when they got to the street he had no hold on Mr Mkandawire but that Mr Mkandawire stopped and said "you've illegally arrested me". He described the meeting with the officers in the police car in much the same terms as those set out above. He then said he went back and bought one more drink but that by then Mr Mkandawire had disappeared. I found Constable Nicholson's story incredible. That the manager of a fast food outlet should in some fashion, which is certainly not apparent, learn that the man who was talking to him was a police officer and request that man to escort him from a disco is quite unbelievable. I am satisfied that Constable Nicholson did use the words charged in the notice of institution of proceedings, did physically restrain Mr Mkandawire and did physically remove him from the premises of the Subway Disco. I am satisfied, too, that although Constable Nicholson's judgment was substantially affected at the time, he did know what he was doing and it follows, therefore, that I find the offence proved since it seems to me that to do what Constable Nicholson did necessarily involved the likelihood that his actions would bring discredit upon the Australian Federal Police. Nevertheless, I think there is an explanation for what Constable Nicholson did. During the course of the day he had worked two hours overtime and had then spent some ~jm hours at the RSL Club before going to the Subway Disco. He had consumed at least two middies and two cans of beer. He was taking medication, a mild sedative called Prothiadene. Dr Dwyer gave evidence that the combination of alcohol and Prothiadene had a potentiating effect. In addition, I am satisfied that the low grade infection from which Constable Nicholson had suffered, according to the evidence of Dr Dwyer, was still having some effect on him. Additionally, I am prepared to accept the evidence of Dr Dwyer that Constable Nicholson's circadian rhythm had been disturbed. In combination, all these facts led, I think, to a situation where Constable Nicholson's judgment was badly distorted. I think that he realised when Mr Mkandawire approached the police car after the incident that he was likely to find himself in hot water and that in some odd fashion he rationalised his conduct to come up with an explanation which was, as I have indicated, incredible. I do not think that Constable Nicholson deliberately perjured himself when giving evidence although I found that evidence impossible to accept. In all the circumstances I am satisfied beyond reasonable doubt that the disciplinary offence charged has been proved. I certify that this and the 7 preceding pare ape. a true copy of the in Reasons for "Tudgaont herein of his Honov Mr. Justice Kelty Glam ob 4 Devers (ohr] 'g Fi