| | [1990] AFPDT & i IN THE FEDERAL POLICE ) ) DISCIPLINARY TRIBUNAL ) THE PRESIDENT No. FPDT 13 of 1990 BETWEEN: CONSTABLE JOHN ROSEVEAR Appellant AND: COMMISSIONER FOR POLICE Respondent ORDER (FOSTER J) 18 DECEMBER 1990 SYDNEY THE TRIBUNAL ORDERS: That the appeal from the decision of the Commissioner given on 6 September 1990 whereby he dismissed the appellant from the Australian Federal Police as and from 12 October 1990 be allowed. That the said penalty of dismissal be set aside. That in substitution therefor the appellant suffer a reduction in annual rate of salary to the amount of the annual rate of salary appropriate for a second year constable. That there be no order as to costs of this appeal. IN THE FEDERAL POLICE ) ) No. FPDT 13 of 1990 DISCIPLINARY TRIBUNAL ) BETWEEN: CONSTABLE JOHN ROSEVEAR Appellant AND: COMMISSIONER FOR POLICE Respondent REASONS FOR DECISION FOSTER J (PRESIDENT): These Proceedings are an appeal by Constable Glen Rosevear to this Tribunal pursuant to s 68 (1)(b) of the Complaints (Australian Federal Police) Act 1981 ("the Act"), The appellant seeks, pursuant to s 68 (5)(b), that a penalty imposed upon him by the Commissioner of Police in respect of certain beaches of discipline be set aside and that a lesser penalty be substituted. 'The penalty was imposed consequent upon adverse findings made by Mr B.R. McGuire QC, a Tribunal member, in an inquiry under s 67 of the Act, to which I shall make reference later. At about 4.00am on the morning of 5 December 1988, the appellant and another police officer were engaged in an unseemly altercation with four civilians in East Row Canberra and also on the ramp leading to the loading dock underneath the Hyatt Hotel. A third police officer was with the appellant, but allegations against him were dismissed. The appellant was, as were the other constables, off duty. He had 2. been drinking alcohol for a considerable period of time and was obviously significantly affected by it. The civilians involved were also affected by alcohol. The appellant was the driver of a car in which the other two constables were passengers. The civilians had been travelling in a motor vehicle driven by a Mr Sandheim. The chain of events which led to the disciplinary offences commenced when the vehicle driven by Rosevear passed the group of civilians who had alighted from their vehicle and were on the footpath in East Row. The occupants of Rosevear's vehicle made loud abusive comments about and to the occupants of the civilian vehicle. The appellant adopted an attitude at the time which was found by Mr McGuire QC to have been clearly aggressive. The learned member also found that the chain of incidents was occasioned by Rosevear's aggressive control of his motor vehicle which was intended to and did result in a confrontation with the civilians on the footpath in East Row. Instead of driving by them he intentionally turned the vehicle round and brought it back to the point where the civilians were congregated. As a result of what occurred then and also later at the Hyatt Hotel, complaints were lodged by the civilians and disciplinary proceedings were taken against the appellant and the other constables. These proceedings, as I have indicated, were heard by Mr McGuire QC and decided by him on 31 July 1990. Mr McGuire considered nine charges brought against the appellant. Mr McGuire QC found him guilty of six of them, namely five disciplinary offences specified in regulation 18(1)(d) (improper conduct - assault on members of the public) and one offence under regulation 18(1E) (manner unbecoming - insulting and offensive words), the regulations in question being the Australian Federal Police Discipline 2 ations. I shall refer to the circumstances of these offences, as found by the learned Tribunal member, later in these reasons. Mr McGuire QC, pursuant to gs 67(3B) of the Act, having made the relevant findings of guilt, remitted the proceedings to the Commissioner of Police for the imposition of a penalty. Consideration having been given to the offences, the Commissioner, pursuant to s 63(7) of the Act caused a notice to be served on the appellant informing him that consideration was being given to whether the penalty of dismissal from the Australian Federal Police might be imposed. It was also indicated in the notice that the Commissioner was considering other penalties provided under regulation 22, namely: "1. Reduce you to the last annual rate of Salary in the rank of constable. 2. Reduce you to a lower annual rate of salary in the rank of constable. 3% Impose a fine on you not exceeding an amount equal to the salary of constable for a period of five days at the rate at which your salary is Payable." The notice informed the appellant that he might within fourteen days deliver a written statement to the Commissioner of matters that he wished to be taken into 4. consideration in the decision of the appropriate penalty. The appellant responded to this notice by forwarding to the Commissioner a statement in writing. He requested that the Commissioner impose the lowest penalty referred to in the notice. He relied upon the following matters: "1. All the circumstances of the incident. 2. My previous good record during my five years and four months in the Australian Federal Police. 3. The character references attached." In relation to "1", he stressed his significant state of intoxication. He denied, contrary to the finding of the Tribunal, that he had "started the incident" but admitted that his intoxication resulted in the incident being "carried on much further than it ever should have". He said his behaviour was out of character and that when sober he was "reasonable" and "non aggressive". He also relied upon the fact that the civilian driver, who was "an intoxicated adult" had confronted him on the footpath with "an eight - ten inch knife". In response to this perceived threat he had armed himself with a steering lock device which he had taken from his vehicle. He relied on the fact that "at no stage did I hit anybody with the steering lock, nor did I threaten anyone with it or attempt to hit anybody with it". In this regard there had been no finding of a hitting or attempt to hit with the steering lock although the learned member clearly accepted 5. that it was produced as a threat. As to "2", the appellant outlined his previous career in the Australian Federal Police over the five years and four months since joining on 28 April 1985. He had served at a number of stations in the Canberra area with most of the time being spent in General Duties "covering a wide variety of work". He said that he had always carried out his duties to the best of his ability and had not received any complaints. He had, in particular, not been the subject of complaint in relation to any aggressive behaviour on or off duty. He had spent a large part of his time working successfully with the public in the Neighbourhood Watch organisation and, through his efforts, had contributed to an improved level of efficiency of the operation. He described the incidents giving rise to the charges as a "one-off" occurrence. As to "3", character references were provided by police officers who had worked with the appellant. They commended his previous work and his attitude to his duties. They indicated that the behaviour constituting the offences was out of character. The appellant also asked that there be taken into account the stress which had been occasioned to him in the carrying out of his police duties after the incident, the embarrassment occasioned by press publicity, the cost of his defence of the charges which involved him in personal payment 6. of $1,900 and the fact that the police work he was given after the incident involved him in "90% day work" resulting in a pay loss of some $4,000 to $6,000. He also asserted that his aggressive behaviour was occasioned to a significant degree by Sandheim's use of a knife. He referred to the fact that Sandheim did not give evidence. He emphasised that he had obtained the steering lock as a defensive weapon and had struck no one with it. The Commissioner, having taken these matters into account, imposed the penalty of dismissal from the Australian Federal Police. The Tribunal, in hearing this appeal, has a complete discretion as to the affirming of the penalty imposed or substituting another penalty in its place. It can have regard only to the range of penalties provided for by regulation 22, to which reference has already been made. The powers of the Tribunal, in this regard, have been succinctly and, in my view, correctly set out in the respondent's submissions, as follows: "The Tribunal can hear fresh evidence and should reach an independent conclusion on a penalty which, in all the circumstances, it considers appropriate: Rowlands v. Commissioner of Police (9 December 1983, Kelly J.) at pp. 921s Swann Vv. Commissioner of Police (31 October 1985, Kelly J.) at pp. 15-16. However, the views taken by the Commissioner of Police are to be accorded their appropriate weight: Craven v. Commissioner of Police (9 February 1987, Kelly J.) at p. 11; Rowlands v. Commissioner of Police (31 October 1985, Kelly J.) at p. 15." 7 » I do not have before me any written reasons of the Commissioner for imposing the penalty that he did. However, the Commissioner has been represented in this appeal and I have had the benefit of very full argument presented in favour of the upholding of the penalty imposed. In approaching the determination of this matter, I bear in mind that the function of the Police Force is the maintenance of law and order and that, accordingly, the engaging in activity which is inimical to that object must be viewed very seriously (R v Wilson: ex parte Donaldson (1977) 32 FLR 399 at 417). I must also have regard to questions of general and specific deterrents of the type of conduct in question, the protection of the public, and the need for the public to have confidence in the character of police officers. I am satisfied that the officer, himself, is entitled to have his service history taken into account, any extenuating circumstances relating to the offence, and also his attitude to its commission. It is also, in my view, appropriate to consider whether the continuance in service of an officer who has been found guilty of offences is likely to be detrimental to the proper administration of the Police Force, through its having any disruptive influence in the areas where the officer is employed or in having a deleterious effect upon the morale of his fellow officers. In this regard it is, in my view, proper to take into account evidence of other police officers bearing on these matters. Such evidence must, of course, be weighed very carefully, where a penalty of dismissal has been imposed, 8. against the opinion of the Commissioner, necessarily implicit in the imposition of that penalty, that the commission of the offence renders the officer involved unfit to remain in the Police Force. I should add that where, as here, another police officer has been found guilty of breaches of regulation arising out of the same incidents, then it may be appropriate to have regard to the penalty imposed on that other officer, with a view to avoiding relevant disparity in the imposition of penalties. I turn, then, to the substance of this appeal. I first have regard to the obvious gravity of the breaches of regulation which the learned Tribunal member found to have occurred. He found that the appellant, as driver of the motor vehicle, adopted the role of both leader and main aggressor. His conduct in turning the vehicle and precipitating the confrontation on the footpath has already been referred to. He found that the appellant did not take an opportunity, reasonably presented, of removing himself and his passengers from the potentially violent situation which was developing. Rather, he returned to his vehicle not for that purpose but for the purpose of arming himself with the steering lock. This was found to be an aggressive act, which it undoubtedly was. It is clear that the appellant asserted in the hearing that the obtaining of this weapon occurred in 9. the course of legitimate self-defence. It was found that this was not the true position, but that it was obtained as an offensive weapon. It is to be noted, however, that there was no finding that, although the weapon was brandished, that any person was actually struck. Another matter for consideration is that although there was fighting amongst the men and "fisticuffs", there appears to be no suggestion that any significant injury was inflicted upon any of the participants. However, the clear effect of the Tribunal's findings was that the appellant was in a highly aggressive frame of mind at all stages, that he initiated the whole disgraceful series of events on the footpath, and that in continuation of his aggressive mode of behaviour, he pursued the other vehicle to its stopping place at the hotel and was party to further acts of aggression there. Not to put too fine a point on it, he was obviously drunk and spoiling for a fight. The production of the knife by the man Sandheim did not in the circumstances call for the production of a weapon in self-defence, nor did the appellant respond by way of self-defence. The production of the knife merely served to provoke further aggressive behaviour on the part of the appellant. I consider that the Tribunal's findings provided ample warrant for the penalty of dismissal imposed by the Commissioner. I have to consider, however, whether, having regard to further material placed before me, I should take a different approach. I have heard evidence from the appellant himself. I am satisfied that he had wished to make a career 10. in the Australian Federal Police and that before this incident he had discharged his duties satisfactorily and had not behaved in a manner such as to cause concern as to his fitness to be a member of the Force. He certainly did not assist himself by adhering, in cross-examination, to his assertion made in his written response to the Commissioner that, in relation to his obtaining and using of the steering lock that "I felt at the time, and still believe, that I was reasonably entitled to protect myself". It is submitted on behalf of the Commissioner that persistence in this answer indicates that the appellant is displaying an arrogant failure to accept the he was guilty of wrong doing and that he had a clear duty in the circumstances to avoid rather than escalate his participation in the combat developing on the footpath. This submission has undoubted weight. On the other hand, it is at least possible that the effect of over-ingestion of alcohol by the appellant had seriously effected his appreciation of the significance of the production of the knife at the time and also his recollection of the incident. In the upshot, however, I could find little in the evidence of the appellant or in his demeanour in the giving of it that would have led me to alter the penalty imposed. However, I was much impressed by the evidence of Sergeant A. F. Castle. The sergeant had provided a fairly cogent character reference on behalf of the appellant on 30 August 1990. He supplemented that character reference by bringing it up to date in sworn testimony. I am satisfied ll. that the sergeant, upon the appellant being transferred to his station, and with the knowledge of the appellant's offences, kept particular surveillance of him. He gave a very balanced appraisal of the appellant's work and attitude as a police officer from the commencement of his duties at the sergeant's station. He was clearly in a position, and also took the opportunity, to observe closely the appellant both on and off duty. He found him to be a competent police officer, with a conscientious attitude to the performance of his duties and one who was courteous to the public. He also had good relations with his peers on and off duty. He conveyed the view that the appellant had learnt his lesson and should make a competent officer, of use to the Australian Federal Police. He also expressed the view that the appellant had something of an alcohol problem in that he displayed an over- fondness for alcoholic drink. He expressed the view that this was something that the appellant needed to guard against to the extent, if necessary, of seeking medical advice. This is clearly something the appellant should bear in mind. There can be little doubt that it was serious over-indulgence in alcohol that led to the commission of the offences. Although the Tribunal found that the appellant took the lead in the commission of the offences, it is clear that the other constable of the three who was also found guilty, could be described as having been an enthusiastic participant. It is not unreasonable, in these circumstances, to consider 12: whether there is any significant disparity between the penalty imposed upon the appellant and that imposed upon the other constable. He received a penalty of reduction in annual rate of salary to that of a second year constable. At the time of the offence he had been a third year constable. I consider that in all the circumstances, on the evidence before me, there would be sufficient disparity between the penalty imposed upon the other constable and the penalty of dismissal imposed upon Constable Rosevear. To put it another way, if I were to impose the penalty of dismissal, there would, in my view, be, on the present state of fact, an unacceptable degree of disparity. I have come to the conclusion that I should impose a different penalty. I take into account the facts as _ found that Constable Rosevear was the leader and main aggressor and was also the senior constable present. Obviously he must suffer a greater penalty than that imposed on the other constable. I consider that the interests of the public, the Australian Federal Police, and the constable will be sufficiently served if I impose upon him, effective from today, a reduction in his annual rate of salary from his current salary as a fifth year constable to the salary of a second year constable. I so order. I do not consider this is an appropriate case in which to order the Commissioner to pay the appellant's costs. I make no order as to costs. I certify that the preceding twelve (12) pages are a true copy of the Reasons for Decision herein of his Honour Mr Justice MM. L. Foster, President of the Federal Police Disciplinary Tribunal. Associate: vV Dre — he , Date: 18 DECEMBER 1990