[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 us." I do not accept one word of that evidence of Whitty. When interviewed by IID investigators on 4 May 1988, that is, about a month after the event Whitty was invited to outline his complaint. That interview is exhibit 4 and the question to which I refer is question 7. Thereafter, at question 73 he was asked, "And what did they say to you on that occasion?" In the answers that follow those two questions there is not a breath of a suggestion of the material that is now sworn to by this man. I simply do not believe him. He almost resiled from the proposition that he was told that he was under arrest. He watered it down to the extent that he had Duthie merely muttering, "Yeh, I guess so", in answer to the witness's question, "Am I under arrest?" I said earlier that the Commissioner's case was supported by the evidence of Mr Mayberry. It is supported to this extent: that Mr Mayberry swears to some words said to have been used by Duthie which would, at least in theory , support the allegations made against the respondent Duthie. Mayberry's account is that in answer to Whitty's question, "Am I under arrest?" Sergeant Duthie said "Yes, you are under arrest." There is no question there of muttering and there is no question there of the witness hearing the respondent say, "Yeh, I guess so". It is a completely different account from that given by Whitty. I must say that I took particular note of Mr Mayberry, who was the first substantive witness in the case. He gave most of his evidence with a very silly grin on his face. Nobody bothered to ask him about that but it was not lost on me. I do not know what to make of him, but it is clear to me that there was no physical restraint put upon the man Whitty immediately prior to his departure from the shop and I reject the evidence that he was told he was under arrest and I reject the evidence that he went because he was in fear. In those circumstances there simply cannot have been any arrest. I am told that Mr Stretton, solicitor for Whitty, would swear that an hour or more later he was told by one of the respondents that the man Whitty was under arrest. I do not know what to make of that. If there was any arrest there was only one and it was at the shop. No other case is advanced by the Commissioner and Mr Saxby quite properly has conceded that there was an arrest at the shop or no arrest. What was said to Mr Stretton some hours later about the man Whitty's then circumstances does not seem to me to cast any light on the circumstances in which Whitty left the shop. In my view there was no arrest. The notifications against each of the respondents are dismissed and I order the Commonwealth of Australia to pay the costs of the Respondents. BuRs MAGUIRE, ee MEMBER