190) AF PDT 4 E_ FEDERAL POLICE DIS€IPLINARY TRIBUNAL No. 3 of 1989 COMMISSIONER OF POLICE against SERGEANT PATRICK JOHN GALLAHER 17 January 1990 MR_B.R. MAGUIRE, Q.C., Member REASONS FOR DECISION The respondent, Sergeant Patrick John Gallaher comes before the Tribunal to answer a number of allegations brought against him by the Commissioner. They all relate to events of 7 March 1988, some of them at the Goulburn Street premises of the AFP and some of them at the Waverley Station of the New South Wales Police. All of the allegations relate to events that occurred in the late afternoon. Before I come to the allegations themselves, it is necessary to reflect upon some of the events that occurred earlier that day because they provide a background to the allegations and without a consideration of the earlier events it is not realistic to apply one's mind to what happened later in the day. The respondent and other sergeants in the AFP were concerned on 7 March about an impending change in the working conditions of at least some of them. The respondent had a particular concern as he was an office bearer in the New South Wales branch of the Australian Federal Police Association. For the purpose of discussing the Association's affairs in that respect and preparing a course of industrial action to be held in the future, the respondent and three other sergeants decided to have lunch together at a restaurant in the city. Evidence has been given about that lunch and evidence has been given by each of the participants in the lunch. None of it is directly relevant to the allegations against the respondent. However, it provides a background to the events later in the day. Each of the other participants in the lunch was brought before the Tribunal to answer a variety of allegations. By consent of all parties the hearing has been a joint one and each of the other respondent's cases has concluded prior to today and has been disposed of. It should be borne in mind that no allegation is made against Sergeant Gallaher either in respect of his attending the lunch away from his workplace or in respect of the mere fact of his having consumed alcohol at that lunch. After the lunch Sergeant Gallaher went to the Goulburn Street premises occupied by the AFP and spent some time in pursuit of the matters that had been the subject of discussion at the lunch. Thereafter and at about the end of the shift on which he and many other people were engaged that day, he learned that one of his members, A senior Constable Davies, was at the Waverley Police Station in one sense or another in the hands of the New South Wales police and that Inspector Harrigan of the AFP, who was then a member of the Internal Investigation Division of the AFP was also at the Waverley Police Station and had apparently played some part in the bringing of Davies to the Waverley Police Station. These facts were a matter of legitimate concern to any office-bearer of the Australian Federal Police Association and no criticism can be levelled against Sergeant Gallaher for the fact that he immediately decided that he would attempt to communicate with Davies as soon as possible. Those decisions are decisions made by Gallaher which one would expect a person in his position to make and to implement and no criticism can be offered of him in respect of those matters. However, the allegations that bring him before the Tribunal have to do with the way he conducted himself at various times later in the afternoon whilst in pursuit of the perfectly legitimate aims that he had set for himself in the interest of Davies. Before I come to the allegations themselves, it is necessary to consider a proposition put by Mr Wasilenia on behalf of the respondent that goes to the foundations of each of these allegations. Put shortly, the proposition is that Sergeant Gallaher was not on duty at any relevant time, that he was not "Sergeant Gallaher" but "Mr Gallaher", vice-president of the association, and that anything he did whilst wearing «his association hat is outside the reach of the discipline provisions of the law governing the Australian Federal Police. That submission seems to me to fail for a number of reasons. If one looks at the regulation 18 of the Australian Federal Police (Discipline) regulations it is quickly apparent that it is cast in such a way as to govern the behaviour of a member not only in the course of his official duties but generally. Regulation 18(1)(d) refers to disgraceful or improper conduct either in his official capacity or otherwise. None of the arms of regulation 18 is expressly limited to official capacity or duties except (c) which refers to negligence or carelessness in the discharge of duties. It seems to me it is is in the very nature of a disciplined force that a member of that organization must be amenable to discipline not only in the discharge of his duties whilst formally on duty in the course of his employment, but that his behaviour or conduct can be reached by the disciplinary provisions governed by the disciplined force at any time where the behaviour or conduct is caught by a specific provision such as several of those to be found in regulation 18. There is no direct authority under the Australian Federal Police legislation dealing with this point. An analogy has been drawn between the Australian Federal Police and the Australian Military forces and I have been referred by counsel for the Commissioner to the decision of the Court Martial Appeal Tribunal (as it then was) in the case of re Nickols's appeal, 1966 9 FLR 120. The decision of the Tribunal in that case had to do with a letter written by a commissioned officer purporting to resign his commission. Plainly, it was not something he was doing in the course of his duty. The Tribunal at page 125 says this: However, and it is a matter of degree, the wording of the complaint or application may go so far beyond what should be regarded as right and proper to be in such terms as to constitute a military offence. It seems to me that the whole thrust of the Discipline Regulations is calculated to ensure that members of the Australian Federal Police conduct themselves as they ought to be expected to conduct themselves at all times. That does not mean that there is no right to a private life on the part of a member of the Australian Federal Police, nor does it mean that the force of law can be brought against an official of the Australian Federal Police Association in order to inhibit on his part the proper discharge of his functions as a member of the Association in pursuing the interests of his members. In the view I take, the Discipline Regulations fundamentally require a member of the Australian Federal Police to behave himself and there are specific provisions, and then "conduct" is left undefined to be determined in the judgment of the Tribunal in the end result. Where there is conduct that is unbecoming a member of the Australian Federal Police or conduct that is likely to bring discredit to the reputation of the Australian Federal Police, then it matters not in my view whether the conduct is conduct engaged upon during a shift and on duty with the Australian Federal Police or whether it is conduct engaged upon whilst the respondent is watching a football match or doing anything else in public, or while he is transacting the affairs of the Australian Federal Police Association. It is not unimportant to reflect that nobody can be an office holder of the Australian Federal Police Association without being a member of the Australian Federal Police Association and nobody can be a member of the Australian Federal Police Association without being a member of the Australian Federal Police. The office holding and membership of the Association are closely intertwined with membership of the Australian Federal Police and if one needed to look at the justification for the Discipline Regulations, quite apart from the legal effect of them, the community would expect that a member of the Australian Federal Police would behave himself always ina manner that was not unbecoming his membership of the Australian Federal Police. In my view, the point taken about his being off duty and on service with the Association does not avail the respondent in these cases. That brings me then to the precise allegations: Firstly, number 20/8889 alleges pursuant to paragraph 18(1)(e) of the discipline regulations that on the 25th floor of the Goulburn Street premises during a conversation with Superintendent Sing and in the presence of two civilians employed by the Australian Federal Police that the respondent used lewd, derogatory and threatening words concerning the Internal Investigation Division of the Australian Federal Police. The primary evidence supporting that allegation is the evidence of Superintendent Sing to be found at page 170 of the transcript where he says that in the location mentioned the respondent used these words: those fucking IID cunts have set him up with the state police. They have got priors for this. I will kick their heads in. Pobje, one of the civilians to whom I have referred, gave a somewhat different account of his recollection of the words used. He said at page 88 of the transcript: those fucking IID blokes are at it again. That is, he attributed those words to the respondent. The other civilian was Mr Carey. It appears from his evidence at page 107 of transcript that he cannot recall what the respondent said on the 25th floor of the building and before the group of men entered the lift to descent to the ground floor. In those circumstances, there might be thought to be some room for doubt as the whether the matter is made out. However the issue is simplified by the fact that the respondent himself gives very direct evidence on the matter. At page 500 of the transcript his own counsel read to him the words deposed to by Mr Sing at page 170 and then asked him: Did you say those words during conversation with Superindent Sing? The answer came: I do not recall the exact words, but I said similar words to that, yes. It is quite clear to me that the words deposed to by Mr Sing were used. It is also quite clear to me that those words were derogatory of the Internal Investigation Division of the Australian Federal Police. That offence is made out. The next allegation was brought pursuant to paragraph 18(1)(g) of the Discipline Regulations and alleges that the respondent acted in a manner likely to bring discredit to the reputation of the Australian Federal Police in that in the Goulburn Street premises he used lewd and derogatory words concerning the Internal Investigation Division in the lift in those premises. The evidence disclosed that the AFP as at 7 March 1988 occupied at least two floors at or near the top of that building. It may have occupied one or two other floors somewhat lower down, and the inference is that the balance of the building was occupied by tenants other than the AFP. The evidence does not disclose who those tenants are, but one would assume from the mixed occupancy of the building that the lifts were open to the tenants and, indeed, anybody who chose to enter the building during ordinary working hours. As to this allegation there is a dispute as to what was said. Mr Sing at page 170-171 was asked about what the respondent said in the lift, and he answered: Yes, he said "Those fucking IID bastards are at it again" And on the journey to the ground floor the lift stopped at a number of other floors, other passengers entered the lift, including young females and: Sergeant Gallaher continued to attempt to engage me in conversation about the IID. He was then asked: Can you remember what other words he used in relation to the IID? He answered: One of the things that he said was, "those frigging IID cunts had no right to kidnap Davies and hand him over to the state police. That fucking Bill Harrigan has got priors for this. I will kick his head in." Further on Mr Sing asserted that in addition to using the word "fucking" in the lift the respondent used the word "frigging" at least three times. Mr Pobje gave evidence about this matter at page 88 of the transcript. His evidence as to the words used by the respondent is limited to the word "frigging" in distinction to the stronger word deposed to by Mr Sing. Mr Carey gave evidence at page 107. He was asked. Do you remember any of the particular words that were used in talking about the IID? He answered: The only words I remember Mr Gallaher saying is he said, "fucking IID". I then asked him, "That was in the lift?", and he answered. "In the lift". It might be noted that in the question immediately preceding the question from counsel that I have set out his attention had been directed to words used in the lift. The respondent himself gave evidence about this matter at page 500. Counsel read to him the Sing version and asked him, "Did you use those words in the lift?". The respondent answered, "No". He was then asked, "What did you say in the lift?". He said, "I used the word "frigging" but I never used any of the other language complained of". He agreed that he used that word in reference to IID. After giving this matter a lot of reflection I am satisfied beyond reasonable doubt that the words deposed to by Mr Sing or something very like them were used by the respondent in the Lift. There is no doubt that he was in a rage at that time and there is no doubt in my mind that he was under the influence of alcohol at that time. As to the matter of alcohol, I will deal later in these reasons for decision in some detail with that matter but it seems to me that the combination of the alcohol and the rage really make it very difficult for the respondent to give a credible account of what he did and did not do in the lift, particularly in the light of the way he had been behaving immediately before he entered the lift. I am satisfied beyond reasonable doubt that he used those words and that they were derogatory of the Internal Investigations Division of the Australian Federal Police, and that allegation is made out. The remaining allegation, number 22/8889, really consists of six separate allegations. Somewhat unhelpfully they are numbered 1 to 5, number 2 amounting to two distinct allegations. These proceedings are brought pursuant to paragraph 18(1)(e) of the Discipline Regulations and allege that in the six respects referred to the respondent acted in a manner unbecoming a member of the Australian Federal Police. The first allegation is that he remained at the Waverley Police Station whilst under the influence of alcohol. It is convenient to refer firstly to the respondent's own evidence in relation to the consumption of alcohol. I do that without losing sight of the fact that the onus' rests upon the Commissioner and that, indeed, the Commissioner bears the onus of proof beyond reasonable doubt. The respondent gave evidence about this matter on Monday of this week starting at page 506. He was there asked by his own counsel: When had you had something to drink and do you recall how much it was? He answered: I had something to drink at lunch that day and it was about three glasses of wine and one or two glasses of Benedictine. When asked whether he was affected by that liquor he said, "No". That evidence given in chief did not survive the test of cross-examination. At page 524 of the transcript the respondent agreed that he had probably consumed a bottle of wine at the lunch. That volume of wine in my view is close to double the amount that he asserted in chief. He also acknowledged at page 525 of the transcript that he certainly had two Benedictines. So the reality is that so far from having three glasses of wine and one or two Benedictines, the respondent, in fact, consumed a bottle of wine and two Benedictines. He sought in his evidence to assert that he was stone cold sober - transcript page 528. He went so far as to assert that it would have taken three bottles of wine and half a bottle of Benedictine to introduce him to a state where he could correctly be described as being under the influence of alcohol. I find it very difficult to accept that evidence. No expert evidence has been called about the respondent's capacity to resist the effects of alcohol usually found in most people. I think it is sufficient to look at the evidence of those who observed him that afternoon both at Goulburn street and at Waverley, particularly those who knew him well, and to look at his own behaviour. Mr Pobje at page 90 of the transcript said that the respondent "appeared to be affected by alcohol". He did not support that view very strongly, and without rejecting it I do not place a great deal of reliance on Mr Pobje's observation. Mr Carey was asked directly at page 108 about the respondent's sobriety. He responded to that by saying that he could smell alcohol on the respondent in the lift. He also commented on the way the respondent was speaking and the volume of his speech. He did not notice anything else about him. That, again, is not strong evidence in my view but it is not evidence that I reject. Mr Sing who knew the respondent better than either of those two gentlemen was asked at page 171 about the respondent's state of sobriety. He answered at page 172: In my opinion he was moderately affected by liquor. He spoke of the smell, his bloodshot eyes and his behaviour. I find that evidence quite persuasive. Mr Harrigan saw the respondent at Waverley: he was asked for his impression at page 226 and he answered: It was obvious to me on this occasion that he was affected by intoxicating liquor. He was not his normal self. I find that evidence persuasive. Of particular significance in my mind is the evidence of Sergeant Standen who gave evidence-in-chief at page 212. He said that the respondent was affected by alcohol. When asked, "To what extent" he replied: Significant to the extent that he was more abusive than he would normally be. He was somewhat bloodshot and I could smell the alcohol. In cross-examination at page 215 he said this: I have the benefit of knowing Sergeant Gallaher both sober angry and intoxicated angry, sober pleasant and intoxicated pleasant and my opinion was formed on the basis of that. I was quite taken with that evidence when it was given. I find it quite compelling when one adds that evidence to the evidence of Pobje, Carey, Sing, Harrigan and the evidence of the respondent to which I have referred above and the way in which he was, on his own admission, behaving. It seems to me beyond argument that he was under the influence of alcohol on that afternoon as a result of the lunch and that he was still under the influence of alcohol whilst he was at the Waverley Police Station. The second allegation is the double-headed one: it is there asserted that in conversation with Superintendent Harrigan the respondent used lewd and derogatory words about Harrigan himself and about the New South Wales Police Force. The first of these allegations is not the subject of any evidence. I cannot see where Mr Harrigan attributes to the respondent any language about himself, Harrigan, that would meet the description of lewd and derogatory words and I indicated in the course of a no case submission on 10 August 1989 that that allegation was insupportable. The second allegation relating to the New South Wales Police Force depends entirely on the evidence of Inspector Harrigan. At page 223 he says that the respondent said to him: Why bring him here? He is one of ours. Why bring him here to these cunts? In my view those words, if uttered by the respondent, would be sufficient to justify a finding in relation to the allegation. However, the respondent denies using those words and and I am not satisfied on the evidence of Mr Harrigan that they were used and that limb of the allegation fails. iS The third arm of the allegation is to the effect that in conversation with Sergeant Standen the respondent used lewd and derogatory words concerning Superintendent Harrigan. There is really no dispute about the facts in relation to this matter. Sergeant Standen's evidence is to be found at page 209 of the transcript where he says that the respondent said, speaking of Harrigan: When they put teeth into his head they ruined a perfectly good arse hole. The respondent himself disputes that evidence to the limited extent of substituting the word, "mouth" for the word "head". His evidence is to be found at page 504 of the transcript and I find it a fact that he used the words repeated by him in the transcript. It was put by counsel for the respondent that notwithstanding that, the allegation is not made out. Evidence was called from a number of members of the AFP in the Eastern Region the broad thrust of which was to suggest that indecent epithets were part of the daily stock in trade of most, if not all of the members of the AFP in the Eastern Region. I am not satisfied that it is so. I heard evidence from Sergeant Hackett to the contrary and I am inclined to prefer Sergeant Hackett's evidence. However, it is not the essence of this allegation that the respondent was merely adorning an otherwise harmless piece of prose with some filthy epithets. That is not the allegation at all. What is actually said when one looks at it is more substantial than that. What the words amount to is, in my view, a gross insult tendered to a commissioned officer by the respondent sergeant. I think that the derogatory element of the offence would have existed even if the sergeant had couched the ideas he was expressing in perfect medical school anatomical terms rather than in the indecent terms that he chose to use. He was not just tossing in some epithets. He was offering a very derogatory view of a superior officer when he used those words. That cannot be otherwise than unbecoming a member of the Australian Federal Police. There is sought to be mounted from the bar table an argument that the audience was very narrow in that it consisted only of Standen. That argument ignores the admission made by the respondent himself at page 504 of the transcript. Speaking of a Constable Wilson I asked the respondent: Where was Wilson?---He was standing halfway down the stairs. He was two or three stairs down. Perhaps within earshot?---I cannot be sure of that. I presume that if he was paying attention he might have heard some of the conversations. It may be that the very letter of the General Instruction 24 does not have direct application to the circumstances prevailing at the Waverley Police Station on the afternoon of 7 March 1988, but the spirit of that General Instruction recognises' the reality that constables, that is, future sergeants and officers, will model themselves on their own superior sergeants. It is quite clear to me that Sergeant Gallaher offered this derogatory assessment of a commissioned officer to a fellow sergeant without any regard to the fact that a constable was only a matter of feet away and would probably hear what he said. That allegation is made out. The allegations numbered 4 and 5 both depend upon the evidence of Sergeant Selwood of the New South Wales Police. Number 4 asserts that the respondent blocked a doorway at the Waverley Police Station and number 5 asserts that he repeatedly pressed a buzzer beside the doorway. I have not heard the respondent's account of those matters because during the course of a no case submission which was debated before me on 10 August 1989 I indicated that whilst there was a prima facie case in respect of each of those matters I was not satisfied on the evidence of Sergeant Selwood that either of them was made out and as to those particular allegations I remain in a state where I am not satisfied. However, the allegation as to alcohol and the allegation as to the words concerning Superintendent Harrigan survive and to that extent I find that allegation proved. B.R. MAGUIRE, MEMBER