IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL TRIBUNAL: DATE: [1990] AFPDT 4 No FPDT 6 of 1990 No FPDT 7 of 1990 No FPDT 8 of 1990 COMMISSIONER OF POLICE and CONSTABLE GLEN ROSEVEAR COMMISSIONER OF POLICE and CONSTABLE GARY BERNARD HUNT COMMISSIONER OF POLICE and CONSTABLE RONALD JOHN MCFADYEN REASONS FOR DECISION Mr B.R. Maguire, Q.C., Member 31 July 1990 The case for decision involves allegations brought by the Commissioner of Police against each of Constables Rosevear, Hunt and McFadyen in respect of certain incidents that occurred on the morning of 5 December 1988. Each of the respondents appears to answer a series of nine allegations, the same nine allegations being preferred against each of them. It is, of course, important to remember that each case must be looked at separately and I will come to do that in due course. However, it is convenient and I hope helpful to commence my reasons for decision by giving a sketch of the events as they unfolded on the night in question. I will then turn my attention to the allegations against each member separately. On the night in question two parties of men were drinking at various places in Canberra. The first party included a man whom I have not seen named Sandheim, who was employed ina Managerial position at the Hyatt Hotel and three of his subordinates whom I have' seen. Each of those gentleman, namely Messrs Pauline, Whitford and Fielding was quite youthful at the time and about 10 years or so junior to the supervisor, Mr Sandheim. They had all been at an end of year party at the Hyatt Hotel, the theme of which was "Beach". That I gather involved each of them in being dressed as though the occasion were being held at the beach. They left the party at about midnight, not all of them together at that stage; but there came a time early on the following morning when all four of them were outside an establishment in Manuka called Rudes. There the three younger men were offered a lift to the city by Mr Sandheim for the purpose of enabling the four of them to continue the party. They travelled to the city in a soft-top Suzuki four wheel drive owned and driven by Mr Sandheim and they continued the party at the Subway which is a late night place of entertainment and refreshment in Civic. The four of them left that place somewhere after 4 am. The other party of men consisted of the three respondents, that is Constable Rosevear, Constable McFadyen and Constable Hunt. Some of them had been at work on the afternoon preceeding these events but all of them attended a barbacue in the suburbs until a fairly late hour. The three of them then left that barbacue and drove separately in their respective vehicles to the Woden Valley Station where each of them was then stationed. They met there for the purpose of enabling two of them, namely McFadyen and Hunt, to leave their vehicles there so that the three of them might travel to the city in Rosevear's vehicle. That duly happened and the three of them arrived in the city in the early hours of the morning with the intention of drinking some further alcohol at the Private Bin. The vehicle was parked in Northbourne Avenue in the region of the Private Bin which turned out to be already closed. They then went to another establishment nearby in Northbourne Avenue called the Avenue where they drank liquor until the early hours of the morning. Having left the Avenue they re-entered Rosevear's vehicle and proceeded to a different parking position near the Subway. Having left the vehicle in the vicinity of the Subway, they discovered that that establishment was already closed, and they then re-entered Rosevear's vehicle with Constable Rosevear driving. The paths of these two groups of men crossed for the first time in East Row in Civic, not far from the Subway. It is convenient now to deal with the allegations against Constable Rosevear, and to refer to the evidence against him. Mr Pauline told the tribunal, at page 23 of the transcript, that a HG Holden sedan came from the side alley, and drove past his group, "hurling abuse". He deposed to the use of the words "faggot" and "queer". He was not able to be precise as to which of the three respondents was responsible for using that language. In my view, it is sufficient to note that the respondent, Rosevear, was driving the vehicle, and that following the use of the language, it was he, Rosevear, who turned the vehicle around once, or perhaps twice, in order to draw it up near to the Hyatt group of men. Mr Pauline proceeds to describe, on page 24 of the transcript, that the vehicle, having stopped in the vicinity of his party, two of the members of the police group "were becoming quite aggressive". By this time two of them, and I find that to be Rosevear and McFadyen, had alighted from the Holden vehicle in the near vicinity of the other men. There were some further words of quite an offensive nature used, as deposed to by Mr Pauline at page 24. It matters not whether those words were used by Rosevear or by McFadyen, because clearly they were acting in concert. This account of the initial confrontation between the police group and the Hyatt group is reinforced by the evidence of Mr Fielding. He describes, at page 67 of the transcript, that abuse was hurled from the Holden. He repeats the words "poofters" and "faggots" and adds to that collection the further expression "fuck-wit". At page 68 he relates how the man Sandheim responded to this initial barrage of language, and then goes on to tell the Tribunal that that apparently polite response from Sandheim was greeted with a further volley of abuse in the following words, "I have got a jar of vaseline for you." Generally, the Whitford account of the initial confrontation between the two groups is similar to that of the account given by Mr Pauline. Mr Whitford also described that initial confrontation in East Row. He repeats his recollection of the language emanating from the vehicle at page 95 of the transcript. His evidence coincides with that of the other two witnesses in that he recollects the word "faggots" being used. He adds to that the word "queers", and "things like that", and describes the language as having come from the Holden vehicle. Mr Pauline relates, at page 24, that Sandheim directed the three younger men to get into his vehicle, he, Sandheim, expressing the intention to "settle down" the situation. They did get into the vehicle and this left Sandheim alone on the footpath confronted by initially two of the police constables, namely Rosevear and McFadyen. It is perhaps important to add at this stage that none of the three respondents was dressed in police uniform although one of them, not Rosevear, was wearing part of his uniform under another garment. The man Sandheim was the possessor of a large and quite dangerous knife which apparently was stored in the driver's door of vehicle. Having directed the three younger men to enter the vehicle Sandheim took that knife out of the vehicle and confronted the men Rosevear and McFadyen with the knife. The Tribunal has not heard any evidence from Sandheim who is said to be a European and to be absent from Australia at the time of the hearing. It is not an issue that arises in this case for determination whether Sandheim acted reasonably or not in producing the knife that he did in the circumstances in which he did. All that needs to be noted is that in response to what I hold to be a series of aggressive acts on the part of Rosevear Sandheim did indeed produce that knife. Rosevear's own account of what he was doing is to be found firstly in exhibit 3, which is a transcript of an interview had between himself and Chief Inspector Cooper of the Internal Investigations Division of the Australian Federal Police on Wednesday 7 December 1988. In the course of that interview he does not concede that the initial verbal abuse eminated from him or from anybody in his vehicle. He asserts that the first words used came from the Hyatt group on the footpath. I reject that version which was later advanced by Rosevear on oath before the Tribunal but even if one were to accept the proposition that the initial language came from the man on the footpath the response of Rosevear to that language, as set out by him in answer to question 24 in exhibit 3 was quite inappropriate. He described the matter as follows: I heard something, I do not know what it was. I vaguely remember them saying something like, I am not sure what the comments were or anything that was made. I turned the car around, we went back. I cannot think. Up London Circuit heading towards City Station and pulled up just on the corner, I think it was at East Row so we done au-turn. The three of us that were in my car got out and approached the five males. I. cannot recall what we said, we just wanted to find out what was said. Now it has to be noted that there were not five males in the other party. It also has to be noted that on the evidence given before the Tribunal when Rosevear left the vehicle he was not accompanied by Hunt but only by McFadyen and in those two respects the answer that he gave to Chief Inspector Cooper is not accurate. He was asked in the hearing before the Tribunal about this aspect of his behaviour and his motivation for stopping the vehicle to speak to the men on the footpath. At page 171 I asked him some questions myself, and in answer to one of those he said: If it was something uncomplimentary I would like to have known what was said, and why it was said. I would add for my own part, that that approach to something said by another at this hour of the morning and in these circumstances, I take to be aggressive in its very nature. The sensible thing for Rosevear to have done, if indeed some language had been used by the people on the road or the footpath, was to go home and ignore it. When I put that suggestion to him, at page 71, his response was: Drink, alcohol on board. That I take to be his explanation for why he acted in the fashion that he did, rather than go home. At page 195 of the transcript, he agreed that it was present to his mind when he stopped, and asked for the language to be repeated, that that might lead to violence. I think the real explanation for Rosevear's stopping and confronting this other group of people is to be found in an answer he gave at page 170 of the transcript, when he said: I think I was put in the same situation anybody else would have been. That is, he regarded the use of some language, which he said came from the other party as "putting him in a situation". I take that to be a rather strange approach to life. However, that is the way he put it, and it indicates to me that he was acting aggressively in what he was doing. The knife having been produced by the man Sandheim, had the instant result that Rosevear and McFadyen were reinforced by Hunt alighting from the vehicle; and that had the consequence that the three younger men from the Hyatt party alighted from their vehicle. A general melee then ensued, and it is not possible for the Tribunal to exactly sort out what happened between various pairs of actors in that melee, but some things are clear. Firstly, it is clear that Sandheim was never successful in using the knife to penetrate the person of any of the three constables, if indeed that had ever been his intention. Nobody was wounded by the use of the knife. Secondly, it is clear that at an early stage, Constable Rosevear retreated to his own vehicle for the purpose of arming himself with a crook-lok, and indeed he succeeded in arming himself with that instrument which he habitually carried between the two front seats of his Holden vehicle. Having armed himself with that weapon, he then advanced again on Sandheim, and proceeded to strike at Sandheim with a view to knocking the weapon, or the weapon hand of Sandheim, so as to disarm him. On the view I take of the matter, that LL behaviour by Rosevear amounted to an assault upon Sandhein. It matters not whether Sandheim was guilty of an assault upon Rosevear. The law is very clear that the victim of an attack May not use any more force than is reasonably necessary in order to protect himself against that attack. And the law is also clear that it is the first duty of the victim of an attack to depart from the scene, and not to use any force at all upon the aggressor if he can depart the scene in safety. It is clear to me that Rosevear had every opportunity to re-enter his vehicle. Indeed, he partly re-entered his vehicle for the purpose of getting this weapon which was secreted inside it. Whether or not Sandheim was an aggressor, Rosevear had the clear duty and the opportunity to depart the scene without exposing himself to any danger from the knife. Rosevear's aggressive attitude up to this time is entirely consistent with what happened thereafter. Following the melee at Civic, the three respondents re-entered Rosevear's Holden with Rosevear again driving and the four men from the Hyatt re-entered Sandheim's vehicle with Sandheim again driving. That latter vehicle preceded the former away from the scene of the Civic melee and was driven to the Hyatt Hotel. Along Commonwealth Avenue it is clear that Rosevear observed the other vehicle ahead of him and that he followed that vehicle into the ramp leading to the loading dock underneath the hotel. It was at that ramp or in the vicinity of that ramp that a security officer, namely Mr Brassington, was stationed. Rosevear told the Tribunal, at page 181, that the sole purpose of his following the Suzuki into that place was to enable him to ascertain and note the registered number of the Suzuki vehicle. That, plainly, was not his motive. The Suzuki was parked on the ramp. Rosevear drew his own vehicle to a halt on his own evidence so close behind the Suzuki that from the driving position of the Holden he was unable to observe the rear number plate of the Suzuki. He then alighted from his vehicle and went to a point near the Suzuki from which point it seems unlikely that he would have been able to observe the rear registered number plate in any event. Beyond that, it is clear that he made no attempt to observe the number plate at any stage of the proceedings and it is also clear that whilst he was stationary there and outside his vehicle, Constable McFadyen took the opportunity to engage in a further act of physical aggression involving the witness Pauline. I reject Rosevear's evidence that his motive in following the Suzuki vehicle to the Hyatt was anything to do with ascertaining the registered number of the other vehicle. My view is that, consistently with the way he had been acting in Civic, this was a further act of aggression on his part. It also happens to fit the fact which gave rise to this confrontation initially; namely that Rosevear was driving his vehicle in East Row at all. MThat road, on the evidence, is not a road open to private motor vehicle traffic and his presence in that road suggests a lawless attitude on his behalf on the night in question. It has been said on behalf of Rosevear that his conversations with a Sergeant Van Akker and a Sergeant Martin, both of the Woden Valley Police Station, somehow indicate that he was an innocent party in the events of the morning in question. I have not seen either of those Sergeants, but each of them was interviewed and records of the interviews have been introduced into evidence. Sergeant Van Akker's interview became exhibit 16 before the Tribunal. He gives an account in a somewhat general way of the three respondents having approached him together at about 6 o'clock in the morning. In answer to question 10 he says this: I arrived for work just prior to 6 am on the Monday morning. Those three were present in the police station. They told me that they had been involved in some sort of an incident with a member of the public, or members of the public. I am not sure which. I am not sure in which they had had some sort of an altercation. I do not know why. I do not know why it started. I did not go into it in any depth. They said that a knife had been produced to them and as a result they had been involved in some fisticuffs and they wanted to know what they should do. He further says: I just told them if I had been involved there would be two ways that I would look at it. I would either do nothing about it, or I wouldmake a job on the fact that a knife had been produced to me and I left it up to them as to what they wanted to do about it. Just looking at the involvement of Rosevear alonefrom that conversation for a moment, it is quite clear that he did not give Sergeant Van Akker a full and frank account of the incident that had taken place in Civic. Secondly, it is clear that Constable Rosevear elected not to make any official report of the incident at Civic involving the knife, or of any events that had taken place at the Hyatt Hotel. I fail to understand how that discussion between himself and Sergeant Van Akker points to anything but a consciousness of guilt on the part of Rosevearhimself in respect of the incidents earlier in the morning. Sergeant Martin's interview became exhibit 17 before the Tribunal and he also gives an account in answer to question 8 of the meeting between the three respondents, including Rosevear and himself. Sergeant Martin says this: It was about 5.30 in the morning on the Monday morning of the 5th. I was coming off the night shift at 6 when the three constables McFadyen, Rosevear and Hunt approached me in the Sergeant's office area of Woden Station. They asked if they could have a quick word. In their terms they informed me that they had been involved in an altercation, a fracas, a fist fight, in fact, with three male civilians that previous morning, shortly before they had attended at Woden Station. Their problem was, as I understood it, that they had been in town still clothed in police uniform, but covered with tracksuit tops. One had a civilian shirt on, I think. They asked advice as to if they would be looking at disciplinary action, or being caught out in uniform, if the civilians that they had had the altercation with decided to make some sort of complaint in the future. The advice I gave them was that if they were there, in fact, as complainants, there and then, then it would be dealt with in the normal, as an on the road job. The other action they could take is to write it off to experience, go home, have a sleep and hope that it would go away. In answer to question 24 Sergeant Martin says this: As at The advice I had given him, that is that there was two ways to go about it, Sergeant Van Akker was coming on duty and, in fact, had arrived at the station by the time I had ceased to give them my advice. I suggested that they, in fact, speak to him. with the Van Akker account of events in the Woden Station about 6 am, I can find nothing in Sergeant Martin's interview which suggests that Constable Rosevear was acting as the aggrieved victim of an attack upon himself by others. That brings me to a direct consideration of the nine charges that have been brought against Constable Rosevear. The first, number 41/8990 involves an allegation that he acted in a manner unbecoming a member of the AFP in that he used insulting and offensive language to members of the public. I am unable to say whether the language deposed to by the witnesses was used by Rosevear or by McFadyen but I am able to say that it was used by one or the other. If it were indeed used by McFadyen, it was clearly adopted by Rosevear in that it produced an instant response in him that made him pull up and confront the other people. I find him guilty of that offence. The second charge, number 42/8990 involves an allegation that he acted in a manner unbecoming a member of the AFP in that at the Hyatt Hotel he did use insulting and offensive language to members of the public. I am not satisfied beyond reasonable doubt that that offence is made out, and that is dismissed. The third charge, number 43/8990 involves an allegation of improper conduct otherwise than in the course of official capacity in that it is alleged that the respondent assaulted Sandheim, Fielding, Pauline and Whitford. There are further charges involving separate allegations of assault upon particular individuals and because of the view that I take about those charges, it seems to me that this charge ought to be dismissed. The fourth allegation, number 44/8990 is an allegation of improper conduct otherwise than in the course of official capacity and the essence of the charge is that Sandheim was assaulted by either Rosevear, Hunt or McFadyen, the three of them acting in concert. It follows from what I have earlier said about the use of the crook-lok by the respondent Rosevear in relation to Sandheim, that I am of the view that he is guilty of assaulting Sandheim, and accordingly that charge is made out and I find him guilty. Charge number 45/8990 is an allegation of improper conduct otherwise than in the course of official capacity, and involves an allegation of assaulting Fielding. This allegation is put on the basis that Rosevear was acting in concert with Hunt and McFadyen. It is clear on the evidence that Fielding was assaulted in the course of the melee which was in my view initiated by Rosevear. In those circumstances the allegation is made out and I find him guilty. The next allegation is number 46/8990 which is again an allegation of improper conduct otherwise than in official capacity, and this involves again an allegation that he was acting in concert with Hunt and McFadyen and that Pauline was assaulted. It is clear on the evidence that Pauline was assaulted in the course of the melee that was initiated by Rosevear and that justifies a finding of guilty which I record. Number 47/8990 involves an allegation of improper conduct otherwise than in course of official capacity, and an allegation that in concert with Hunt and McFadyen, Whitford was assaulted, and amongst other things, struck with a metallic instrument. Nothwithstanding some evidence that Whitford was struck with a metallic instrument, I am unable to find that that particular element of the allegation is made out, but I am persuaded beyond reasonable doubt that Whitford was assaulted by one of these men as part of a melee which was initiated by the aggressive conduct of Rosevear, and I find him guilty of that allegation. Number 48/8990 alleges that he was guilty of improper conduct otherwise than in official capacity - in that he, Hunt and McFadyen, acting in concert - there was, in effect, a further assault upon Pauline at the Hyatt Hotel when one of the men tried to pull Pauline out of the Suzuki motor vehicle. On the evidence, it is clear that Rosevear delivered the man, McFadyen, to the vicinity of the Suzuki in which Pauline was a passenger, and that McFadyen then directly perpetrated the assault alleged upon the man, Pauline. Rosevear was clearly acting in concert with McFadyen, and the necessary consequence is that I find him guilty of that offence also. Finally, so far as Rosevear is concerned, number 49/8990 is an allegation of improper conduct otherwise than in course of official capacity and effectively involves an allegation of damage to the Suzuki motor vehicle. There is evidence that Constable McFadyen, at least struck at that vehicle, but I am not persuaded that any damage was occasioned to it, and that charge is dismissed. Numbers 41, 44, 45, 46, 47 and 48 are all referred to the Commissioner for the imposition of punishment. As I have said, numbers 42, 43, 49 are dismissed. I have considered the question of whether or not I might make an order against the Commonwealth for payment of part of the respondent Rosevear's costs, in view of the fact that his defence in these proceedings has been, in part, successful. Having considered it, I have decided that I will not make any such order for the reason that substantially his defence in these matters has failed. That brings me to the respondent, McFadyen. I have already referred to the evidence given by Mr Pauline at page 24 of the transcript in which he refers to "two of the gentlemen becoming quite aggressive". It is clear on the evidence that Constable Rosevear, having drawn up his vehicle in the presence of the Hyatt party for the purpose of confronting them, McFadyen was fairly quickly out of the vehicle and confronting those citizens in company with Constable Rosevear. Constable McFadyen was interviewed by Detective Sergeant Pope and others on 8 December 1988 and a transcript of that interview became exhibit 1 before the Tribunal. He was asked at question 100: What was your state of intoxication that evening? He replied: Heavily intoxicated, I think. He further admitted that the word "drunk" was appropriate to be applied to his condition. Those answers are consistent with the evidence that he gave before the Tribunal. He was asked at page 149: How much of this incident do you actually remember now? And he answered: Very very very little. At page 158 he gives an account of having a_ sketchy recollection of being at one or other of the Sydney or Melbourne Buildings - he cannot say which. He summarises it at the foot of page 158 by saying: I just have a flash like. I do not have a moving picture. I have a still picture. It is clear from his answer to question 117 in exhibit 1 that he has no recollection at all of being at the Hyatt Hotel on that morning or indeed ever. I must say that I believe the evidence that Constable McFadyen gave to the Tribunal about his state of recollection and about his advanced state of insobriety. I am quite certain that he was telling the truth about those matters. However, that does not afford him a defence under the law to the allegations made against him. It is quite clear that he was acting, albeit under the stimulation of liquor, but acting nonetheless. That brings me to a consideration of the particular allegations against him. Number 59/8990, is an allegation that he acted in a manner unbecoming a member of the AFP in that he used insulting and offensive language to members of the public. In this case, as in Rosevear's case, I am unable to say which of them used the language but the conduct of McFadyen immediately after the use of the language was such as to persuade me either that he used it or that it was used by Rosevear and adopted by McFadyen. I find him guilty on that charge. Number 60/8990, is an allegation that he acted in a manner unbecoming a member of the AFP in that at the Hyatt Hotel he used insulting and offensive language. I am not satisfied beyond reasonable doubt that he is guilty of that offence and accordingly that will be dismissed. Number 61/8990, is an allegation of improper conduct otherwise than in official capacity and alleges an assault upon Sandheim, Fielding, Pauline and Whitford. For reasons that I. gave in relation to 43/8990 against Constable Rosevear, I dismiss that charge. Number 62/8990 involves an allegation of improper conduct, otherwise than in official capacity. And really amounts to an allegation of assault on Sandheim. I do not regard McFadyen as being the person who directly assaulted Sandheim, but it is clear that he was acting in concert withRosevear, and I find him guilty of that offence. Number 63/8990 is an allegation of improper conduct, otherwise than in official capacity, and really amounts to an allegation of an assault upon Fielding. There is no doubt that Fielding was assaulted by one or other of these men, whilst they were acting in concert, and I find the respondent, McFadyen, guilty of that charge. Number 64/8990 is an allegation of improper conduct, otherwise than in official capacity and really amounts to an allegation of assault upon Pauline. For similar reasons I find him guilty of that offence. Number 65/8990 is an allegation of improper conduct, otherwise than in official capacity, and amounts to an allegation of assault upon Whitford, which allegation includes the assertion that Whitford was struck with a metallic instrument. As with the companion allegation against Rosevear, I am not able to say that Whitford was struck with a metallic instrument, but I am satisfied, beyond reasonable doubt, that McFadyen was a party to an assault, by one or other of these men, upon Whitford. And I find him guilty of that. Number 66/8990 is an allegation of improper conduct, otherwise than in an official capacity, and really involves an allegation that one of these men, acting in concert, tried to pull Pauline out of the back of the Suzuki motor vehicle at the Hyatt Hotel. It is clear, on the evidence, that the respondent, McFadyen himself was the perpetrator of that act. He was unsuccessful, only by reason of the fact that he was kicked by Pauline, and thereafter desisted from his attempts to pull him out of the vehicle. I find him guilty of that offence. Finally 67/8990, is an allegation of improper conduct, otherwise than in official capacity, and really amounts to a charge of damaging the Suzuki motor vehicle. I am not persuaded that that happened and I dismiss that allegation. Numbers 59, 62, 63, 64, 65 and 66 will be referred to the Commissioner for the imposition of penalty. Numbers 60, 61 and 67 will be dismissed. As with the respondent Rosevear, I have considered whether or not I should make an order for payment by the Commonwealth of part of the costs of McFadyen. And for the same reasons I expressed in relation to Rosevear, I have decided against that course. The question of punishing Rosevear and McFadyen is, of course, entirely a matter for the Commissioner, in the first instance. However, the Commissioner is entitled to have before him all the findings of fact that I am able to make about the conduct of the respondents. In addition to the findings I have made so far, I would simply add that I am persuaded that as between those two respondents, Rosevear led the way and that it was the unhappy circumstance that Rosevear was in the aggressive state of mind that he was that brought McFadyen into conflict with the other group of men, both at Civic and at the Hyatt Hotel. That brings me to the respondent Hunt. He told the Tribunal in relation Civic, (at page 237 of the transcript): I heard the conversation start between them. Between Constable Rosevear and the other males. I do not know if all the males were saying something. I know there was one specific male who was gesturing or talking towards the car. Further on he said this: I asked Constable Rosevear to "leave it alone and just drive home." He then describes how Rosevear leaves the vehicle and he goes on at page 238 to describe the production of the knife and he says: As soon as I saw the knife pulled I got out of the vehicle and walked round to where Constable Rosevear was. I told the bloke with the knife, "Don't be stupid, put it away." Constable Hunt had been interviewed on 7 December 1988 by Detective Chief Inspector Cooper and a transcript of that interview became exhibit 2 before the Tribunal. In answer to question 23 he said in part: On seeing the knife produced I jumped out of the car. Later in the interview he was asked about the circumstances in which Constable Rosevear had turned the car around to go back to the Hyatt people and Constable Hunt had this to say in answer to question 35: I wanted to go home. All I was saying was, "I want to go home." That material in the interview with Detective Chief Inspector Cooper is entirely consistent with the evidence that Constable Huntgave before me. I am not satisfied that he leant his will or his body to any of the acts of Rosevear until the knife was produced by Mr Sandheim and then, and only then, did Constable Hunt leave the vehicle and involve himself in the situation that Rosevear had created. Hunt was in the vehicle when it arrived at the Hyatt and told the Tribunal at page 240 of the transcript: Constable Rosevear and McFadyen got out of the vehicle and I stayed in the rear. He then describes that after that: I. opened up my door, stepped out and I shouted for Constable Rosevear and McFadyen to get back in the car. And further on he says: Rosevear and McFadyen returned to the car and we drove away. As with Civic it is clear to me that Hunt had no involvement. He did not lend either his wil or his body to the actions of Constable Rosevear at the Hyatt Hotel and I am unable to see how he is guilty of any of the allegations against him and they will all be dismissed. I order the Commonwealth to pay Constable Hunt's costs. There is one other matter in relation to Constable Hunt that requires attention. At page 89 of the transcript, Mr Pauline, giving evidence on the second day of the hearing told the Tribunal that the respondent Hunt had spoken to him outside the hearing room that morning about a warrant said to be outstanding for a speeding offence. Mr Pauline's account of the words said to have been used appears at page 90 of the transcript. Constable Hunt was cross-examined by Mr Erskine for the Commissioner about that matter at pages 242 and 243 of the transcript. I regard that as a "matter arising in the proceedings" within the meaning of section 71(3) of the Complaints (Australian Federal Police) Act 1981, and accordingly I refer it to the Commissioner for investigation. I regard it as inappropriate that I should say any more about it than just that. B.R. MAGUIRE, MEMBER