(la89| AFPDT 7 / IN THE FEDERAL POLICE ) , ) No. 13 of 1989 DISCIPLINARY TRIBUNAL ) No. 14 of 1989 f i: ! ? ae BETWEEN: STEPHEN GERARD PASFIELD Appellant AND: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Respondent BETWEEN: WILLIAM ANTHONY ELDER Appellant AND: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Respondent ORDER THE PRESIDENT (KELLY J) 1 DECEMBER 1989 CANBERRA, ACT THE TRIBUNAL ORDERS:- 1é That the appeal from the decision of the respondent Commissioner dated 6 October 1989 whereby he dismissed the appellants be dismissed. 2'3 That the dismissals take effect from this day. IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL BETWEEN: AND: BETWEEN: AND: REASONS FOR DECISION 1_ DECEMBER 1989 ) No. 13 of 1989 ) No. 14 of 1989 STEPHEN GERARD PASFIELD Appellant THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Respondent WILLIAM ANTHONY ELDER Appellant THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Respondent KELLY J. (President) These are appeals under s.68 of the Complaints (Australian Federal Police) Act 1981 ("the Act") against penalties imposed upon the appellants by the respondent Commissioner in respect of a disciplinary offence of which each had been found guilty by Mr BR Maguire QC, a member of the Tribunal. Each had been charged with a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, namely that he had been guilty of disgraceful conduct in his official capacity. It was alleged against Constable Pasfield that on 17 July 1988 in proceedings before the Canberra Children's Court he knowingly gave false evidence while under oath, namely that in answer to the question, "Do you recall seeing blood coming from my client's nose?" he replied, "No sir, I do not believe it was bleeding", in answer to the question, "Do you recall any time on that night seeing blood coming from my client's nose?" he replied, "No sir", in answer to the question, "I suggest to you at that stage he had a bloody nose" he replied, "No, the only blood I saw was that of Constable Anderson", in answer to the question, "So you deny he had a bloody nose, do you?" he replied, "Yes sir", and finally that in answer to the question, "I suggest to you he had a cut or graze on his forehead at that stage" he replied, "He might have had that, but he definitely did not have a bleeding nose". -2- It was alleged against Constable Elder that on 8 September 1988 in the same court in the same matter he too knowingly gave false evidence while under oath, namely, that in answer to the question, "Do you recall my client's nose bleeding at all during the evening?" he replied, "No, I do not recall it", in answer to the question, "At that stage there was no blood coming from my client's nose. Is that your evidence?" he replied, "That is correct, yes", and in answer to the question, "And you have already given evidence that you deny seeing any blood coming from his nose?" he replied, "That is correct". The hearing before the Tribunal took nearly four days. Mr Maguire found each of the appellants guilty of the charge alleged against them. Under s.67(3)(b) of the Act, he remitted the matters to the respondent Commissioner for the imposition of penalties. The Commissioner carried out the procedures which he was required to follow under the provisions of s.67 and, after considering the material placed before him by the appellants, dismissed each from the Australian Federal Police Force. The appellants now appeal against their dismissals. They have proceeded only on one ground, namely, that the penalty imposed was, in each case, too severe. Counsel for the appellants very properly did not attempt to canvass in any way Mr Maguire's decisions or his am reasons for them. It should be noted at this point that each of the appellants has lodged an appeal to the Federal Court of Australia in respect of the finding of guilt made against him and has also lodged, as I understand it, an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977. The Commissioner was requested to give his reasons for his decision and did so. He said of Constable Pasfield:- "On examination of the Reasons for Decision provided by Mr Maguire, QC in his finding of guilt and the fact that he was satisfied beyond reasonable doubt that Constable Pasfield committed the offence, r believe that Constable Pasfield displayed a complete contempt for the judicial system. In each instance referred to in the Tribunal's decision, Constable Pasfield's character and credibility was not only brought into guestion but found to be lacking in intregrity (sic). As Commissioner, I insist that members of the Australian Federal Police be men and women of integrity and that the highest standards of probity be maintained. When a member tells a lie it reflects discredit on the Australian Federal Police and in my opinion lessens his value as a police officer. The fact that Constable Pasfield has been found to have given false evidence under oath, not only proves that he has not maintained the standard of integrity required but that he has also demonstrated a dishonest course of conduct which is totally unacceptable from a member of the Australian Federal Police. Failure to meet these standards is not only an ethical question but a practical one. Police must be accepted by the community as truthful people. If this matter is not treated seriously then not only the reputation of the Australian Federal Police would suffer, but by association, other officers reputations would be tarnished. Through the courts, society has established the gravity of perjury offences by imposing penalties of imprisonment. Both society and I, demand of Australian Federal Police members adherence to the highest standards -4- of ethical behaviour and probity. In my view there is no place for a member who fails to attain or maintain the required standards, and there is certainly no place for a dishonest member. In determining the appropriate penalty to impose I took into account the member's service history, character references, his submission and the submission tendered on his behalf by Mr J Buxton. I accept that Constable Pasfield's service history has no serious flaws. I also accept that he is well thought of by his peers and is generally an enthusiastic and conscientious police officer who has been commended for his diligence on a number of occasions by members of the public. It is also noted that Constable Pasfield in his submission has expressed deep shame and embarrassment in relation to the findings of the Tribunal. Although this incident would appear out of character for Constable Pasfield, I can find no valid reason or any mitigating circumstance which could be taken into consideration to lessen the seriousness of the offence. In view of all the circumstances the appropriate and proper penalty to impose on Constable Pasfield was that of dismissal from the Australian Federal Police, a penalty provided for by Regulation 22(1)(e)(ii) of the Discipline Regulations." The Commissioner took the same approach in relation to the penalty which he imposed on Constable Elder. The first part of his reasons for decision in respect of Constable Elder were, mutatis mutandis, the same as those which he gave in respect of Constable Pasfield's dismissal. He dealt with Constable Elder's personal situation as follows:- "On reading Constable Elder's personal file it is obvious that he is a very enthusiastic member whose performance assessment indicates no major -5- problems but has a tendency to make decisions hastily. It is noted that Constable Elder was counselled by his Commander regarding a minor indiscretion in February 1984. It is also noted that Constable Elder was commended by a fellow member for actions at the scene of a fatal road accident whilst he was off duty. All references supplied by Constable Elder indicate that he is a person who is dedicated to his career and this incident appears to be out of character, but no valid reason or mitigating circumstance has been presented to lessen the seriousness of the offence." Each of the appellants gave evidence before me, evidence which I accepted. Evidence of their good character but for the incidents in question was led on their behalf. The evidence was impressive and again I accepted it. I do not doubt that the respondent Commissioner correctly assessed their characters as policemen in the reasons for his decisions which I have quoted above. It is unnecessary to say much about the facts out of which the dismissals arose. On 28 December 1985 a youth was observed misbehaving in a public place by a number of police including the appellants. He was arrested and taken to the Woden valley Police Station where he was charged with a number of offences, Thereafter, before any charges against him were heard, he made a complaint to the Ombudsman as a result of which each of the appellants was required to attend at the Internal Investigation Division of the Australian Federal Police on 14 April 1986. Constable pasfield attended on that day but Constable Elder, who had been injured in a car accident some 10 days before, did not attend until 15 April 1986. -6- On 29 December 1986 Constable Elder had prepared a typewritten statement for the purposes of the prosecution by police of the youth who had been arrested. Mr Maguire summarised it by saying that he gave an account of some of the events that happened leading up to the arrest of the youth and an account of some of the matters that took place in an exchange between the youth and police, including Constable Elder, at the Woden Valley Police Station. The statement made no reference to any discharge of blood from the youth's nose. However, questioned by Detective Sergeant Webster of the Internal Investigation Division, he said, "During the struggle [the youth's] nose began to bleed". He was subsequently asked how the youth came to have a bleeding nose and replied that he had no idea. The learned Tribunal was satisfied that the youth's nose had in fact bled. There was evidence of blood stains on that page of the Charge Book upon which the charge of resisting arrest was entered against the youth. Much the same situation obtained in respect of a statement made by Constable Pasfield to Detective Sergeant Webster in April 1986. He agreed that he had noticed that Summerall had a bleeding nose at the watch-house but stated that he got that during a struggle after he had assaulted a police officer. The questions and answers put to each in the Children's Court are accurately set out in the particulars of the disciplinary offences which I have referred to earlier. —f— The false evidence found to have been given by the learned Tribunal appears to have been utterly pointless but Mr Maguire was satisfied beyond reasonable doubt that each of the two officers had lied when giving it. It falls, therefore, to be decided whether, in all the circumstances, the Commissioner imposed a penalty which was too severe. I do not think that it was. The criminal justice system depends iff very large measure upon the integrity of police officers who carry out investigations into crime. It is unthinkable that people may be convicted of crimes on perjured evidence. In my opinion, the respondent Commissioner is entitled, as he said, to insist that members of the Australian Federal Police be men and women of integrity and that the highest standards of probity be Maintained. I think he was right when he said that when a member tells a lie it reflects discredit on the Australian Federal Police and lessens the value of that member as a police officer. Again, in my opinion, the respondent Commissioner was correct when he said that failure to meet those standards is not only an ethical question but a practical one, for police must be accepted by the community as truthful people. I agree with his statement that if such a matter be not treated seriously, not only will the reputation of the Australian Federal Police suffer but other officers' reputations will be tarnished by association. He said, and I agree that he was correct in saying, that both society and he demand of the Australian Federal Police a fis members adherence to the highest standards of ethical behaviour and probity and that in his view there was no Place for a member who fails to attain or maintain the required standards, and certainly no place for a dishonest member. That is not to say that ordinary human frailty may not be taken into account. See Scanes v Wilson [1974] 22 FLR 262 at p.272. Despite the previous good record of the two officers concerned and despite the fact that I think that they would, as police officers, be expected to render long and fruitful service, I think that the appeals must be dismissed. I certify that this and the seven preceding pages are a true copy of the Reasons for Decision herein of his Honour Mr Justice Kelly. Associat Dated: 30 )n/° 649