eq] AFPDT & IN THE FEDERAL POLICE ) ) No. FPDT 1 of 1989 ) afse PLINARY TRIBUNAL THE COMMISSIONER OF POLICE against CONSTABLE WILLIAM ANTHONY ELDER DECISION TRIBUNAL: Mr 8.R. Maguire, Q.C., Member. DATE: 5 May 1989 PLACE: Canberra THE TRIBUNAL FINDS: That the Respondent, Constable William Anthony Elder, a member of the Australian Federal Police, is guilty of the disciplinary offence of which he was charged, namely, disgraceful conduct in his official capacity, being a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations. j AND THE TRIBUNAL ORDERS THAT: 1. The matter he remitted to the Commissioner of Police. By the Tribunal, t REGISTRAR IN THE FEDERAL POLICE ) ) No. FPDT 2 of 1989 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against CONSTABLE STEPHEN GERARD PASFIELD TRIBUNAL: Mr B.R. Maguire, Q.C., Member. DATE 5 May 1989 PLACE Canberra THE TRIBUNAL FINDS: That the Respondent, Constable Stephen Gerard Pasfield, a member of the Australian Federal Police, is guilty of the disciplinary offence of which he was charged, namely, disgraceful conduct in his official capacity, being a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Niscipline) Regulations. AND THE TRIBUNAL ORNERS THAT: li The matter be remitted to the Commissioner of Police. By the Tribunal, REASONS FOR DECISION The events that form the background of the complaints currently before the Tribunal start on the night of 28 December 1985 when one Summerell was observed misbehaving in a public place by a number of police, included amongst whom are the two respondents, Constable Elder and Constable Pasfield. The man, Summerell, was taken into custody and taken to the Woden Valley Police Station where he was charged with a number of offences, the nature of which does not really concern this hearing. Thereafter, and hefore any hearing of charges against Summerell, there was a complaint made by Summerell to the Ombudsman which fell to be investigated by Netective Station Sergeant (as he then was) Webster of the Internal Investigation Divison of the Australian Federal Police. Each of the respondents was required to attend at the Internal Investigation Division on 14 April 1986. Constable Pasfield did attend on that day. Constable Elder did not but it appears that his non-attendance arose out of the fact that he was just heginning to recover from injuries sustained when he was run over by a motor vehicle only about 10 days before. However, Constable Elder did attend on the following day, that is 15 April 1986. On 14 April Constable Pasfield was served with a direction to furnish information pursuant to the Complaints (Australian Federal Police) Act 1981, section 7(5) and in compliance with that direction which is part of exhibit A before the Tribunal, he made a typewritten response and was thereafter questioned at length by Detective Station Sergeant Webster and the questions and answers were recorded. That statement and the record of interview are all part of the same exhibit A. On the following day Constable Elder attended at the Internal Investigation Division and was served with a similar direction as that referred to in relation to Constahle Pasfield. Constable Elder complied with the direction by providing a typewritten statement and he was thereafter questioned hy Netective Station Sergeant Webster and the questions and answers were recorded on the typewriter. The direction, the statement and the record of interview comprise exhibit B hefore the Tribunal. It is to be noted that in each case the complaint referred to in the direction suggested that on 28 December the complainant, Summerell, was arrested by three police officers in a certain place at Woden and that he was assaulted by police both at the time of his arrest and later at the Woden Police Station. On 17 July 1986 Constable Pasfield gave evidence hefore the Magistrates Court in the prosecution proceedings brought against the man Summerell. Nn 8 September 1986 Constable Elder gave evidence in the same Court in the same proceedings. Thereafter, on 22 June 1988, each of the respondents was served with a further direction under section 7(5) of the Complaints (Australian Federal Police) Act hy Detective Inspector Foster of the Internal Investigation Division. Those respective directions are not in identical terms nor is it necessary to set out the terms of them. It is sufficient to say that each of them drew to the attention of the respective respondent what was alleged to he a discrepancy between the evidence that he had given to the Magistrates Court and the account of affairs that he had given previously. Each of the respondents was thereafter charged before this Tribunal with an offence. From this point on, it is important to distinguish between the case brought hy the Commissioner against Constable Elder and the case brought by the Commissioner against Constable Pasfield and from this point on, I shall deal with them separately. The allegation against Constable Elder is that he - a member of the Australian Federal Police Force, is guilty of disgraceful conduct in his official capacity, a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Niscipline) Regulations. Particularised in support of that allegation of disgraceful conduct are three passages alleged to comprise part of the evidence given hy Constable Elder on the occasion which I have referred on 8 September 1986. There has been no dispute before this Tribunal, and indeed there was no dispute raised by Constable Flder when he was questioned hy Inspector Foster that the evidence alleged in the particulars was in fact evidence given by him in those proceadings. The transcript of Constable Elder's evidence of 8 September 1986 was put into evidence before this Tribunal. The three passages appear in the transcript of 8 September 1986 starting at page 12. The first quotation reads as follows, question: No you recall seeing my client's nose bleeding at all during that evening? No, I do not recall it. The second passage quoted reads as follows, question: At that stage there was no blood coming from my client's nose. Is that your evidence? That is correct, yeas. The third passage reads, question: And you have already given evidence that you deny seeing any blood coming from his nose? That is correct. Soon after the events of 28 Necember 1985, Constahle Elder had made a typewritten statement for the purposes of the prosecution by police of the man Summerell. That statement bears date 29 Necember 1985 and became exhibit J before the Tribunal. In summary, it gave an account of some of the events that happened leading up to the arrest of Summerell and it gave an account of some of the matters that took place in an exchange hetween Summerell and police including Elder at the Woden Valley Police Station. It made no refereence to any discharge of hlood from the man Summerell's nose. When Constable Elder was served with the first of the two directions pursuant to section 7(5) the account that he gave (in part of exhibit B) can be compared with the account of events set out in exhibit J. It is clear from the later account, that is the one given to Detective Sergeant Webster, that there existed at the that time in Constable Elder's mind a recollection of the events of the night of 28 December 1985 which recollection was larger and more detailed than the account that he had set out in his statement which became exhibit J. Of particular importance is his assertion in page 4 of his statement, quote: During this struggle Summerell's nose hegan to bleed. But that is not the only matter set out hy Constable Elder in that document which is not to he found in exhibit J and it indicates to me that as at 15 April 1986, Constable Flder had a clear recollection of many of the features of the events involving himself, other police and Summerell on 28 December 19.85% In the course of the record of interview which followed upon that statement, it was put (in question 15 by Sergeant Webster) that the complainant Summerell alleged that he, Summerell, was punched by the police at the time that he was arrested and in question 16 it was put that Summerell was alleging that at the Woden Valley Police Station he was assaulted hy police. In question 28 the respondent was asked No you know how Summerell came to have a bleeding nose? And the respondent answered: No idea. There was further questioning about the man Summerell's bleeding nose. In evidence before me it became quite clear that in fact Summerell's nose did bleed at the station that night. Summerel] himself gave evidence before the Tribunal but I attach no weight to the evidence he gave. The evidence, which is overwhelmingly persuasive and which is not in any way challenged, is to be found in the charge hook at the page upon which the charge of "resist arrest" was entered against the man Summerell; that is at page 58 of the charge book which is in evidence before the Tribunal. It is quite clear that there are patches of hlood on that page and it is equally clear, looking at the page and hearing the evidence of Sergeant Fulton, that after the hlood was deposited on the page, Constable Elder affixed his signature to the same page. If one pauses in time at 15 April 1986, Elder was in the position of knowing that allegations of impropriety involving himself were heing made by the man Summerell. He was also in a position to know that it was integral to those allegations that damage was done, by whatever means, to Summerell's nose to the extent that hlood was shed, It is equally clear from the words used by Elder, and to be found in exhibit B, that he had a clear recollection of Summerell's nose bleeding on that occasion. The three passages of evidence which I have already recited fall into two categories: in the first passage the cross-examiner simply asks the witness Elder: No you recall? And the witness answers: No, I do not recall it. If as he now seeks to assert hefore the Tribunal, Elder had a total absence of recollection of the matter under debate that answer would he a truthful answer. In the second and third passages he goes heyond simply agreeing that he has an absence of recollection. As I read those questions and answers he is embracing in each of them the proposition that he saw no blood coming from the man Summerell's nose. If as he seeks to assert now the fact is that he had no recollection then even on his own account of it each of those second and third answers is untrue. That is, even on the state of affairs that Elder himself would ask me to accept, his position is that having no recollection he was nevertheless asserting a recollection which was different from the state of affairs that the cross-examiner was putting to him. For my part I find it impossible to believe that Elder did not have a clear recollection of the events of the night of 28 Necember 1985 when he came to give his evidence against the man Summerell on 8 September 1986. I have already referred to the fact that in April 1986 Elder had been involyed in an incident with a motor vehicle which effected his fitness. The evidence before the Triubnal shows that he did not return to work until 22 August 1986 following that injury. The occasion of his giving evidence was a matter of only 2 to 3 weeks thereafter. In the course of his record of interview with Netective Inspector Foster (question 33) Elder sought to advance as an innocent explanation for the quite clear conflict between what he had told IID and what he told the Magistrates Court the proposition that he had no independent recollection of the incident, hecause, as he said: I am involved in that many incidents of a similar nature at the time I went to Court. Well, that simply cannot stand up. The fact is that as at 15 April 1986 he had, on any view of it, a clear recollection of the events of 28 December 1985 and that thereafter he was not involved in any other incident at least until 22 August 1985 when he returned to work. The argumentative proposition advanced in answer to Inspector Foster's question 33 is no more than that; it is simply an argument that he raises but there is no factual basis for it. It is clear to me that at the time Elder went to Court he was facing his accuser, namely, Summerell. I do not know by what process his mind would have persuaded him but it is common experience that parties and witnesses involved in litigation frequently take the view that a strike at the other wide is a strike to one's own advantage. There was a clear motive on the part of Elder to secure a conviction of the man Summerell and many other people in his position would perceive it as of advantage to him insofar as his differences with the Internal Affairs Division were concerned, to secure a conviction on whatever charge of the man Summerell. It is in the very nature of things that the events having occurred in Necember and Elder's recollection of them being quite clear and detailed when the accusation against himself was first raised in April that that circumstance itself, that is, the raising of the allegation would serve to cement in his own recollection a detailed recall of what happened on the night of Saturday, 28 December 1985. He told the Tribunal at page 119 of the transcript of evidence hefore the Tribunal that he had no independent recollection of the Summerell incident at all at the time he gave evidence to the Magistrate. He was asked: And in the course of giving your evidence at no point did the detail ofthe incident come hack into your memory? And he answered that question: No, not at all. That answer is not to be helieved, It is simply not in the nature of things that a man accused of impropriety and having such a detailed grasp of the events that took place on the night of 28 December and having that grasp as late as 15 April in the following year would within 4 or 5 months forget every detail and forget to the extent that even when he looked at his initial police statement none of> it came back to him. I just find his evidence unacceptable and T am satisfied beyond reasonable doubt that when Elder gave each of the answers referred to in the complaint that he did so knowing them to be false and I find him guilty of disgraceful conduct. The notification against Constable Pasfield is in similar terms in that it charges that he, a member of the Australian Fedeal Police, was guilty of disgraceful conduct in his. official 10. capacity, a disciplinary offence specified in paragraph 18(1)(d) of the Australian Fedeal Police Niscipline Regulations. The particulars alleged in support of the allegation against Pasfield are, of course, different. There are five passages purporting to come from the evidence which are particularised against this respondent. No dispute is raised before the Tribunal as to that evidence having been given, nor indeed was any dispute raised by the respondent when he was interrogated by Inspector Foster on 22 June 1988. The five passages are to be found in the transcript of 17 July 1986, which is part of the evidence before the Tribunal and commencing at page 13 of that transcript. I shall set them out in detail. The first passage reads as follows: Question: Do you recall seeing blood coming from my client's nose? Answer: No, sir, I do not believe it was bleeding. The second passage reads as follows: Question: Do you recall*any time on that night seeing blood coming from my client's nose? Answer: No, Sir. The third passage appears on page 15 and reads as follows: Question: I suggest to you that at that stage he had a bloody nose? Answer: No. The only blood I saw was that of Constable Anderson, The fourth and fifth passages are consecutive and appear on page Tilay 16 of the transcript. The fourth reads: Question: So you deny he had a bloody nose, do you? Answer: Yes, sir. The fifth passage reads: Question: I suggest to you he had a cut or graze on his forehead at that stage? Answer: He might have had that, but he definitely did not have a bleeding nose. When interviewed in the first instance by Detective Station Sergeant Webster, the respondent, Pasfield, made, as I have said, a two-page typewritten statement which can be compared with exhibits K and L, which are two separate statements apparently made by him for the purpose preparing the police prosecution against the man, Summerell. Fach of those statements bears date 29 December 1985. There is some doubt on the evidence as to when each of them was made, but it would seem to me that each of them was made within a relatively short space of time after the events of the 28th. When one compares the totality of the account given in K and L with the account given in*the following April to Station Sergeant Webster, it is clear that as at April 1986 the respondent, Pasfield, had a recollection of the events of 28 December 1985 which exceeded the detail in the two exhibits K and L. In particular, he had a recollection that at a certain point on the night of the 28th Summerell had a bleeding nose. The respondent, Pasfield, himself asserts that in paragraph (9) of his statement made to Sergeant Webster. 12. He goes beyond that in the course of the record of interview. In answer to the sergeant's question 7: Did you notice any injuries to Summerell at any time that night? Pasfield said: Later at the watch-house he had a bleeding nose, but he got that during the struggle after he assaulted Constable Anderson. And importantly, so far as my mind is concerned, it is useful to look at the respondent's answer to Sergeant Webster's question 18. It reads: He would be about the same height (that is as myself) but he is much more solid than I am. I was worried that we would not be able to hold him when we were wrestling with him in the watch-house. There are other details of what is clearly the respondent, Pasfield's, recollection of these events as at April 1986 which appear in the material provided by him to Sergeant Webster. It is clear that when he came to give his evidence against Summerel] on 17 July 1986, a matter of only 3 months after the Webster interview, some of the material, namely that particularised in the notification, is prima facie in conflict with what had been said to Webster. It is sought now by Constable Pasfield to explain away these discrepancies by a number of methods. He told the Tribunal at page 140 that to this day he does not remember Summerell's nose bleeding. The effect of his evidence at page 139 and page 140 is that all the references in the Webster interview and in the statement given to Webster as to Summerell's bleeding nose are 13; put there, not as a result of any recollection he had, but as a result of some suggestion made to him by somebody at the Internal Investigation Nivision. It seems to me to be beyond belief that that could be so. This respondent, like the other police involved in the case, affixed his signature at page 58 of the charge book after the man Summerell had bled onto the page. Commonsense would suggest that such an event is most unusual. A simple reading of what Pasfield had to say in his statement to Webster and in the answers, particularly the one I have recited, to question 18, suggests that he had the clearest recollection of the events in the station on the night of 28 Necember. The answer I have recited suggests that his concern about the events was such that he thought that the drunken lout with whom they were dealing was going to be able to best three or four policemen. In further evidence before the Tribunal the respondent Pasfield, at page 158, was asked by Mr Erskine for the Commissioner about the blood and the evidence he had given before the Magistrate. His answer reads, in part: I answered because I felt then that mayhe he knows something that I keep denying because my memory tells me to deny it. That answer contains a clear suggestion by Constable Pasfield that he had a recolleciton that Summerell's nose was not bleeding at the relevant time. That proposition is clearly in conflict with the defence that he sought to raise before the Tribunal, namely, that he had no recollection one way or the other at the 14. time he gave his evidence. Questioned further about that, he sought to withdraw. the evidence, a novel proposition but one advanced by this witness when he found himself to be in what was really an untenable position. Of the five matters particularised against Constable Pasfield only the second passage admits of a possible innocent explanation. Each of the other five answers could not be a truthful answer if the witness's recollection as to blood or no blood was entirely vacant. It follows that on his own case as to four of these passages, he is guilty of having given evidence which was untrue, at least in the sense that he was asserting something when, on his case, there was nothing in his mind to assert. However, I take a more serious view of the matter than that. This respondent, like Constable Elder, had clearly had drawn to his mind in April that he was the subject of allegations. His recollection as evidenced by the Webster material was quite vivid of a number of Fewteres including the shedding of blood from Summerell's nose. I take the view that in those circumstances when he came to give his evidence only about three months later it is just not possible that he would have forgotten the circumstances which had been so clearly in his mind in April of 1986. I say of this respondent as I said of the respondent Elder, the very circumstance of the making of the allegations ought to be ; 15. enough to cement in the recollection the details of the events which were so recent at the time of the Webster interviews. And, thereafter ordinary commonsense would suggest that he could not have forgotten the details to the extent that he claims and certainly could not have forgotten the circumstance of the blood falling from the complainant's nose and, in particular, falling from the complainant's nose onto page 58 of the charge book. He sought to tell the Tribunal that he still did not remember the nose bleeding right up until the time that he gave evidence before the Tribunal. That evidence is not worthy of belief. In this instance also I am satisfied beyond reasonable doubt that the respondent Pasfield is guilty of disgraceful conduct as alleged. B.R. GUIRE, MEMBER Q.C.