Federal Court of Australia
[18%] AFPDT 8
IN THE FEDERAL POLICE ) No. 9 of 1989 DISCIPLINARY TRIBUNAL ) No. 10 of 1989
COMMISSIONER OF POLICE against
SERGEANT MICHAEL KEITH DUTHIE
COMMISSIONER OF POLICE
against
CONSTABLE JOHN DOUGLAS CURTIS
14 December 1989 MR_B.R. MAGUIRE, O.C., Member
REASONS FOR DECISION
The two respondents appear before the Tribunal, each of them to answer an allegation that on 6 April he, as a member of the AFP, did contravene general instruction 6 in that he did arrest Michael Neil Whitty when proceeding by summons against Whitty would have been effective. The case of the Commissioner is supported by the evidence of Mr Whitty and, to some extent, by
the evidence of Mr Mayberry.
I think the Commissioner's case falls at the first hurdle in that I am not satisfied that there was ever any arrest. I am not given the whole background circumstances of the transactions that took place over some weeks between the two respondents on
the one hand and the man Whitty on the other hand. However, it
is quite clear from the evidence that there had been a number of communications between the two police and Whitty, which communications had proceeded upon an amicable and co-operative
basis.
Thereafter, on 6 April 1988, the two respondents arrived at the premises where Whitty was then employed. They remained at the premises for about half an hour and did not leave there until one of Whitty's superiors had arrived. There is no suggestion that any physical coercion was ever put upon Mr Whitty. It is quite clear that he left the premises with them without any
coercion or restraint of a physical nature being applied to him.
It is equally clear that his right not to go with them was fully explained to him by his solicitor and another gentleman over the telephone. What Whitty now seeks to assert is that his will was overborne by threats which were made to him by Sergeant Duthie whilst the three men were at the shop. Whitty says that Duthie said to him matters like, "You are coming with us, we can do this the easy way or the hard way, come on, you are coming with
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