/ [\qA0] AFPDT 2 ; / IN THE FEDERAL POLICE ) ( ) No. 12 of 1989 DISCIPLINARY TRIBUNAL ) —/ THE COMMISSIONER OF POLICE against SERGEANT NIGEL LEONARD GOULD IN THE MATTER of the Complaints (Australian Federal Police) Act FINDINGS THE PRESIDENT (KELLY J) 23 FEBRUARY 1990 CANBERRA ACT THE TRIBUNAL FINDS THAT:- Sergeant Nigel Leonard GOULD is guilty of the disciplinary offence alleged in Charge No. AFP: 14/8990, namely:- That, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, he acted in a manner that was likely to bring discredit to the reputation of the Australian Federal Police in that, on the 17th April 1989 at Mascot in the state of New South Wales, he did assault Constable Paul KAVICH. THE TRIBUNAL ORDERS THAT:- Sergeant Nigel Leonard Gould be admonished. IN THE FEDERAL POLICE ) ) No. 12 of 1989 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against SERGEANT NIGEL LEONARD GOULD IN THE MATTER of the Complaints (Australian Federal Police) Act REASONS FOR DECISION KELLY J 23 FEBRUARY 1990 By notification of institution of proceedings dated 25 September 1989, the Deputy Commissioner (Administration) of the Australian Federal Police commenced proceedings against Detective Sergeant Nigel Leonard Gould in respect of an alleged disciplinary offence. The nature and particulars of the alleged disciplinary offence were as follows:- "That ... Sergeant ... Gould, a member of the Australian Federal Police, was guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, namely improper conduct in [his] official capacity, in that on 17th April 1989 at Mascot in the state of New South Wales, [he] did assault Constable Paul Kavich." Sergeant Gould denied that he had committed the offence charged. A statement which Constable Kavich made on 18 April 1989 was tendered in evidence. He also gave oral evidence and was cross-examined. Constable Kavich said that at about 2.30 pm on Sunday, 16 April 1989 he was on surveillance duties when he was approached by Detective Sergeant Gould who asked him why he had not paid $5.00 which Sergeant Gould had given him to Constable Locke who collected money, $5.00 a month from each contributing member, for a squad coffee club. Constable Kavich said that he could not remember Sergeant Gould's having given him $5.00. Gould said that he had done so before going on leave. Kavich then replied, oy "OK then if you say so, I'll fix Karyn [Constable Locke] up with the money tomorrow." Constable Kavich said that about 7.10 am on 17 April 1989 he was on duty in the Clerk's Office in the Surveillance Branch Office at Mascot. He checked the coffee fund sheet and saw marks to indicate that Sergeant Gould's commitments for the months January to April 1989 inclusive had been met. (The sheet showed a mark which could have been such an indication for the month of March.) That afternoon he was on duty in the main office area where there were present a number of other officers. Sergeant Gould approached him and said, "I thought you were going to pay Karyn the five dollars..." Kavich replied, "I checked the list this morning and it was already marked for April." Sergeant Gould said, "It was for March, Karyn wrote it in." Kavich said, "It is already marked down." Gould replied, "You're a liar, you owe me the money, you owe me five dollars.." Kavich repeated that it was aleady marked down. Gould, he said, then said to him, "Come in here P.K.." Constable Kavich said that he went into the equipment room following Sergeant Gould's direction. He preceded Gould into the room. When Gould came in he closed the door behind him, although whether completely or not ado Constable Kavich did not remember. He said that Gould immediately pushed him against a steel cabinet at the back end of the room and stood between him and the door so that he could not go anywhere. He said that Gould then struck him three times in the face with his closed fist, twice with the right hand and once with the left. He said that when he was punched, his head hit the steel cabinet behind him. To stop Sergeant Gould from hitting him he retaliated by striking Sergeant Gould with his right fist making, as he said, minimal contact. He said that Sergeant Gould said that he would kill him and struck him again with his right fist. He then grabbed Sergeant Gould by the shirt. Gould said, "Don't you rip my shirt," but Kavich tore two buttons off the shirt. He said that Sergeant Gould grabbed him by the shirt, near the collar, and again pushed him against the steel cabinet. He then ripped a gold chain away from Sergeant Gould's neck and said, "you're mad, all this over five dollars". Gould replied, he said, "You're a liar and a thief." Kavich said that he then said, "When did I lie?" Gould did not answer and he repeated the question. kKavich eventually said, "You're mad, all this over a lousy five dollars, I'll never work with you again." He said that Sergeant Gould then picked up his gold chain from the floor and was about to leave the room when Kavich said to him, whe "T'll have you Yogi." Gould replied, "Okay this is between you and me." Kavich then said, "No I won't give you the satisfaction of putting me on paper." Gould left the room. Subsequently Sergeant Brodie, another member of the squad, asked him whether he was working overtime that night and he replied, he said, "I'm not going to work with that." He then reported the incident to Sergeant Brodie and later informed Detective Superintendant McGufficke of the incident. He was seen by Dr Low on the afternoon of 17 April 1989. On examination, Dr Low found that he had a cut upper lip, bruising on the lower lip and some swelling over the nose which was not' broken. Reporting on 20 April 1989, he said that Constable Kavich was still tender over the left side of the face and had been suffering from headaches for the last few days. In a statement made on 21 June 1989, Sergeant Gould gave his version of the incident. He said that the background went back a month to 22 March 1989 when, before he went on leave, he gave Constable Kavich $5.00 to give to the person who was administering the coffee fund and who was not available on that day. The money was meant to be his contribution for the month of March. When he returned from leave early in April he paid his contribution for April and noted that the payment for March appeared not to have been =5= made. When he saw Constable Kavich on 16 April 1989 he took him aside to ask him whether he had paid the money which had been left with him into the coffee fund. Constable Kavich said that he could not remember having done so. Sergeant Gould asked him to attend to the matter the next day. The next day, 17 April 1989, Sergeant Gould came into the office on the afternoon shift and at about 2.00pm saw Constable Kavich. He said that he took Constable Kavich aside and went with him to the nearest unoccupied room for privacy where he asked Kavich whether he had paid the money into the fund. Kavich replied that it had been marked off. Gould said that it had been marked off for the month of April but not for March. Kavich again said that it had been marked off. Gould then said in his statement, "...I suggested that I thought he was either being a thief or a liar." He said that Kavich resented that and grabbed him by the front of the shirt pulling him towards him so that he tore the shirt and ripped off a gold chain from around Gould's neck. He said that he reacted instinctively and slapped Kavich on the face to get him to let go. He said that Kavich then punched him on the chest, still holding on to him with one hand. He retaliated, he said, by hitting Kavich twice on the face until he let go. He said that he realised the seriousness of what had happened and backed away, picking up buttons which had been torn from his shirt and the gold chain. -6- Sergeant Gould then said, "He then said words to the effect that all this was over $5.00, that I was mad, that $5.00 didn't mean anything to him, and that if he ever had to work on my team, that he wouldn't do anything. He also said that I would be the type ... that would go to paper about what had happened." Gould then said that he told Kavich that they could sort out the differences between themselves. Both then left the room. Superintendent McGufficke later told him that Kavich had made a complaint. I set out at length the last three paragraphs of Sergeant Gould's statement. "In my defence, I believe that I was not the one that initiated the altercation, notwithstanding the fact that I did seek to speak to Kavich privately. Further, in mitigation of my reaction to provocation, I believe that I would not normally have responded in such a fashion when someone grabbed my shirt if I had not been under heavy medication for the flu with drugs which, I am now advised, would tend to raise my blood pressure and could cause unusual responses in various situations of stress. This situation was further exasperated by the fact that I had not been able to sleep for several nights prior to. the incident. My record is blameless, I am known for my retiring disposition and I do not accept that I initiated the physical confrontation with Kavich. My reaction to provocation was an Overreaction and I believe that the sort of response from me was totally out of character and it would not have occurred had I not been under medication and suffering from lack of sleep." Constable Genovese gave evidence that at about 2.25 pm on 17 April 1989 she was walking past the closed door of the equipment room when she heard Sergeant Gould's voice coming from inside the equipment room. She heard him say, "You thief...you liar." ey He was not yelling, she said, but the tone of his voice was aggressive and sounded threatening. Shortly after she saw Constable Kavich and noted that both his lips were swollen and that the inside of both the upper and lower lip was cut and bleeding. His left cheek was swollen and his face and neck were flushed. He was shaking and appeared to be quite upset. She said that Sergeant Gould had gone straight from the equipment room, out of the office and down to the carpark area where he had left with Sergeant Hay. A number of other statements from officers present were tendered but, of course, nobody saw what actually happened. Detective Sergeant Curry said that shortly after Gould and Kavich had been in the equipment room, he saw Kavich go to Superintendant McGufficke's office and that some time later he noticed that the left side of Kavich's face was red and his lips swollen. Constable Strange gave evidence that he heard a conversation between Gould and Kavich about money and then heard Gould say to Kavich in an authoritative tone, "Come here, you", and saw him motion for Kavich to go towards him. He saw Kavich precede Gould into the equipment room. He heard the door slam shut and heard noises consistent with the sound of metal doors closing. A short time later, he saw the two emerge from the room, Gould with the top few buttons of his shirt open and Kavich with his' face reddening. -8- Detective Sergeant Gould has had some 18 years service in police forces and served for three years in the Australian Army. To strike a superior officer, as he alleges Constable Kavich had done, is, in a disciplined force, a very serious matter. It is therefore occasion for some surprise that he did not lay a charge or counter charge against Constable Kavich as the person who initiated the fisticuffs. His failure to do so tends to- support Constable Kavich's version of the events. I have seen both officers in the witness box and am satisfied that Constable Kavich was telling the truth. I am therefore satisfied, beyond reasonable doubt, that Sergeant Gould assaulted Constable Kavich and therefore committed the disciplinary offence with which he is charged. In reaching this conclusion I take into account the fact that Sergeant Gould was suffering from influenza and was taking medication for that condition. I take into account the fact also that he had not been able to sleep for several nights prior to the incident and no doubt was under strain because of lack of sleep. I take into account his blameless record and the laudatory references which were tendered on his behalf. If this were a case where provisions analogous to s.556(A) of the Crimes Act 1900 of the State of New South Wales in its application to the Australian Capital Territory were applicable, I would impose no penalty. As it is, I think the long and unblemished service of Sergeant Gould, the actual circumstances of the incident and his -9- condition at the time require that the matter be dealt with in the most lenient fashion possible. I therefore propose to admonish him pursuant to the provisions of regulation 22(1)(aa) of the Australian Federal Police (Discipline) Regulations. I certify that this and the g preceding pages are a true copy of the | i Reasons for Judgment herein of his Honour © Mr. Justice Kelly Associates | Deted: Q3/a/-4o i