(lasa| AEPDT ¢ IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL No. 5 of 1989 No. 6 of 1989 COMMISSIONER OF POLICE against IAN THOMAS DICKINSON COMMISSIONER OF POLICE against VALERIE MAY HOSKINS 11 August 1989 MR_B.R. MAGUIRE, Q.C., Member . REASONS FOR DECISION Sergeant Valerie May Hoskins appears to answer an allegation by the Commissioner that between 9 November 1987 and 7 March 1988 she contravened the provisions of paragraph 6A of the Australian Federal Police Disciplinary Regulations, in that between 9 December 1987 and 7 March 1988 she did negligently omit to make any entries that she was required to make in her official diary. The facts are that in November 1987 the Sergeant was working on what seems to be a major investigation and that her activities were being recorded in the course of the preparation of that brief. Her official diary was kept up to date until 8 November 1987 but she made no entries in that official diary between that date and the date of her departure for an extended overseas holiday about 20 November. Before the Sergeant went abroad she was aware that the unit in which she was working was about to be moved physically from where she was working to another part of the same building on a different floor. She was conscious of the risk that that move might take place before she should have returned to Australia and to work and consequently she devoted some time to packing up the papers that she was working on and securing them against the possibility that she might come back and find that her paperwork had been interfered with in the course of this move while she was away. In the course of doing that packing up exercise she lodged her official diary somewhere in the compactus with the briefs that she was working on. It was, of course, at that stage out of date by some days. When the Sergeant returned to duty on what appears to have been 21 January, she was not able to locate her official diary immediately. She did not regard it as having been lost but merely as having been misplaced. She was at all times confident that she would be able to locate it in due course in amongst the papers that she had put away before her departure. The Sergeant also had on issue to her in 1987 another diary such as is issued, I am told, to Sergeants, which seems to me to have the function of being an appointment book. The official diary is one that te written up retrospectively recording events that have happened. The non-official one is in the nature of an appointment book and is written up in the ordinary course, prospectively. The Sergeant tells me and I accept her that it has been her practice in the absence for whatever reason of the official diary to use the non-official diary as a temporary means of recording her past activities. When she returned to work the 1987 non-official diary also was missing but by now she seems to have been issued with a 1988 non-official diary and she sought to meet the obligation to diarize her activities by turning to the end of the 1988 non-official diary and recording there in pencil the events that in the absence of the official diary she would ordinarily have recorded in the 1987 non-official diary. She continued with that method of recording, bringing the 87 events up to date to the point where she went on leave in 87, and then recording the 88 events from the date of her return to leave on 21 January in the appropriate place at the front of the 1988 book and in ink. There came a time in March of 1988 when the sergeant still had not located her diary and was made aware that a diary inspection was to be held. She thereupon, as I understand it, altered her priorities and set about a search for the diary. She tells me, and I accept her, that she spent about two hours searching through the papers in the compactus. This search proved to be fruitful and the diary was located as she had always expected it would be. The disturbance to the papers occasioned by this search was such that it took her about two days to restore order. A number of considerations might arise about these facts, but I am required only to look at the allegation which I have already related above. The gravamen of that allegation is that she was negligent. The use of that word imports into my consideration of this matter an examination of what was reasonable. I can see on the face of it nothing sinister about what happened here. The Sergeant tells me that her movements and activities are all accounted for, and there is no challenge to that. It might be said that she should have moved more quickly to retrieve the diary, which was undoubtedly somewhere in the compactus, but, as events prove, a search of that kind would have kept her from all her other duties for two or perhaps even more days. I do not regard what she did and did not do as unreasonable, and in my view the allegation against her is not made out and it is dismissed. I order the Commonwealth to pay the costs. Sergeant Ian Thomas Dickinson is charged with three allegations of breach of discipline, which I will recite somewhat later. The Sergeant comes before the Tribunal after more than 20 years' service and bearing a good character, which is not in dispute. It is. also not in dispute that at the time the Tribunal is concerned with that he was a senior office bearer in his branch of the Australian Federal Police Association and that he was quite active in the affairs of that branch as well as in the affairs of the Australian Federal Police who employed him. In March of 1988 there emerged in the Eastern Region of the Australian Federal Police an industrial dispute, or the makings of an industrial dispute, in that it was proposed by management to alter the rostering system applicable to a particular division of the AFP in the region in such a way that it was perceived by the members of that division rightly or wrongly that they were about to suffer a considerable diminution of their fortnightly incomes. I am not concerned with the merits of that dispute or potential dispute. It is sufficient for me to now that it existed and that it was of concern to Sergeant Dickinson. On the evidence this matter had arisen late in the week preceding the events with which the Tribunal is immediately concerned. On the morning of Monday, 7 March 1988, Sergeant Dickinson was involved in making some arrangement by telephone with some of his colleagues whose affairs were directly affected by the proposed change in rostering arrangements. The respondent at this time was stationed at the Redfern premises of the Australian Federal Police and the people with whom he felt the need to consult for the purpose of preparing the Association's case in relation to the proposed roster change were all stationed elsewhere, namely at the Goulburn Street premises of the AFP. The matter appears to me to have been one that required serious and prompt attention on the part of the relevant officials of the Association and on the part of the members affected. I am told and I accept the evidence that it was sought to have some of the senior Sergeants in the area affected meet with Sergeant Dickinson on behalf of the Association to discuss the matter and prepare the course of industrial action that the Association would pursue in the interests of its members. Accordingly, it was proposed that the respondent Dickinson and other should assemble at a restaurant which was much closer to the Goulburn Street premises than to the Redfern premises and talk about the matter over lunch. Towards lunch time, the Sergeant left his place of work at Redfern and proceeded into the city on the train for the purpose of making a number of 'calls, including the lunch. It is not in dispute that he left the Redfern premises without the express approval of any superior officer nor is it in dispute that before leaving he went to the office of Superintendent Milner where he waited for about 10 minutes but was unable to see the Superintendent. The purpose of that visit I accept was to enable the Sergeant to inform the Superintendent of what he. wished to do and to secure the Superintendent's consent thereto. The Superintendent gave evidence before me and it is quite clear that had he been there and had Sergeant Dickinson asked him for the necessary approval, then it would have been given to him. The evidence of Superintendent Milner on that point is to be found at page 229 of the transcript of these proceedings. The respondent told the Tribunal in the course of his own evidence about his work pattern. None of the evidence he gave about those matters is really in dispute and it is clear that he was given to arriving on the job on a regular basis considerably earlier than his rostered hour and that he was also given to leaving his work place considerably later than his rostered hour. He tells me, and it does not seem to be challenged, that these extra hours of attendance which I find to be not less than 10 hours per week were not recompensed to him in that no claim was made for overtime in respect of them. Io am told by a number of senior officers of the Australian Federal Police who gave evidence before the Tribunal about practices that existed within the Eastern Region, practices which, I if may so say, seem to me to be eminently sensible. Detective Superintendent Matthews, giving evidence in relation to another respondent, said this at page 136: It was accepted as I mentioned earlier, that there was no main objection within reason because of the nature of the duties, because of the extra time that detectives put in. It was generally accepted that on the occasions - on occasion the detectives may take a lunch, a sort of a give and take situation I guess. Further down he says: There was no real objection if they did not abuse it it would be accepted that on the odd occasion they could. He was asked: So for a matter of sheer practical operation of the police force it was accepted that the detectives worked outside shift hours?---Yes. The respondent spend about two hours at the nominated restaurant in the company of the Sergeants with whom he proposed to consult. He tells the Tribunal, and I accept him, that before he left Redfern he told either Sergeant King or another Sergeant that he could be contacted through Sergeant Gallaher. He also told the Tribunal "that he understood that Sergeant Gallaher would be leaving with one or more of his associates the whereabouts of this group of Sergeants. There is further evidence that Sergeant Gallaher's card was presented to somebody at the restaurant against the possibility that a telephone call might be made seeking the whereabouts of any of the people involved. Following the lunch, the respondent did not return to his own office at Redfern but went with the others to the AFP premises in Goulburn Street. During the lunch it is not in dispute—that the Sergeant had consumed a quantity of alcohol. When he arrived at the Goulburn Street premises he spoke with a friend and former colleague whom I have seen, named Michael Shannon. That conversation lasted about 10 to 15 minutes and Sergeant Dickinson then went upstairs in the building with the intention of continuing discussions in relation to the industrial dispute that had been the occasion for the calling together of these people over lunch. That purpose, however, was interfered with by the arrival of the news that a member of the AFP had been taken by State police to the Waverley Police Station and was being questioned there in respect of an allegation of criminal conduct on the part of that member. This, of course, was a matter of legitimate interest and concern to any official of the Eastern Region branch of the Association and Sergeant Dickinson applied himself in ways that I need not go into in relation to that problem which had just emerged. He did not return ever that day to his place of work at Redfern. In fact, he stayed at the Eastern Region Headquarters in Goulburn Street until about midnight. The purpose of doing that was to enable him to speak to his member who returned to that office after having been arrested, charged and bailed. There is no evidence before the Tribunal that any duty at Redfern went undone. Sometime after 4 pm ee the same date, Sergeant Dickinson, having by now learned about the trouble involving the colleague and the State police entered the office of Superintendent Sing at the Goulburn Street premises of the Australian Federal Police. 10. The door of that office was open, which was the usual disposition of that door, unless Superintendent Sing should be conversing about something confidential. Inside having coffee with Mr Sing were two civilian members of the Australian Federal Police. It is common ground that the Sergeant walked into the office without knocking or being invited in. In all the circumstances, I would not regard what happened as amounting to the interruption of a meeting. He, having gained entry, was in fact invited to have coffee by Mr Sing. It seems to me to be stretching the language to suggest that what he did was interrupt a meeting. He was not a junior constable; he was a senior sergeant; and he was aware that Mr Sing habitually left his door open so that people might have access to him. There is a considerable body of evidence to suggest that by the time Sergeant Dickinson arrived in Mr Sing's office, he was quite heavily affected by the consumption of alcohol. The Sergeant denies that on his oath, and his case in that respect is supported to some extent by the evidence of Mr Shannon who had seen him in the foyer not very long before the encounter between Sergeant Dickinson and Superintendent Sing. The view I take of the facts absolves me from the responsibility of deciding for myself the degree to which Sergeant Dickinson Lies was affected by the consumption of alcoholic liquor. The Sergeant appears before me on three notifications under the Australian Federal Police Discipline Regulations. The first, number 15/8889, alleges that he contravened the provisions of the regulations in that on 7 March 1988 at Sydney between approximately 1 pm and 3 pm he absented himself from duty without permission of the member under whose control, direction or supervision he was performing his duties. I have already referred to the evidence about practices and to the evidence of Mr Milner about what he would have done in relation to this proposed luncheon if Sergeant Dickinson had been able to locate him before he planned to leave the premises at Redfern and proceed into the city. The view I take of what happened in all the circumstances is that Sergeant Dickinson had the tacit approval of Mr Milner to do what he did. The allegation is not made out. I will deal next with notification number 17/8889 which alleges that on 7 March 1988 the respondent, whilst under the influence of intoxicating liquor, entered Superintendent Sing's office without first being invited so to do and interrupted a meeting taking place in the said office between Superintendent Sing and other persons. It may be that that piece of drafting could be subjected to an argument about duplicity. However no such 123. argument was addressed to me. I think that notification is disposed of by a consideration of the evidence to which I have already referred above. It is stretching the language to suggest that he needed an invitation or that he interrupted a meeting and that notification is also dismissed. The third notification, namely, 16/8889, alleges that on the 7 March 1989 at Sydney, Sergeant Dickinson contravened the provisions of paragraph 11(1)(a) of the Regulations by drinking intoxicating liquor-and thereby rending himself unfit to perform his duties. There is no evidence to suggest any material degree of intoxication at any moment earlier than the point in time when Sergeant Dickinson entered Mr Sing's office. Indeed, there is a considerable body of evidence to suggest the contrary at all earlier material times. Mr Sing's own view of the matter is expressed at page 182 of the transcript of these proceedings when in answer to Mr Morris of Counsel for the respondent, Mr Sing, said, "You have got to understand that he was off duty at the time". As I have already said, there is no evidence of any particular duty or duties that were left undone. In my view and without the need to proceed to resolve the vexing issue of the degree of intoxication, it seems to me that this 13)s allegation fails simply by reason of the effluxion of time. The day's business was done at the time Sergeant Dickinson entered Mr Sing's office. That notification is also dismissed. I order the Commonwealth to pay the costs of Sergeant Dickinson. B.R. MAGUIRE, MEMBER