[aa] AFPDT 2 IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL No. 1 of 1991 COMMISSIONER OF POLICE and CONSTABLE PAUL EDWARD PALMER REASONS FOR DECISION TRIBUNAL: Mr Maguire, Q.C., Member PLACE : Sydney DATE : 19 April 1991 The respondent, Constable Paul Edward Palmer, comes before the tribunal on one allegation, that as a member of the Australian Federal Police he was guilty of a disciplinary offence, namely, disgraceful conduct, in that on 7 November without lawful excuse he is alleged to have disclosed to one Gallaher that a telephone at the Enfield Boulevarde Hotel had been intercepted by the Australian Federal Police. The facts alleged would if proved constitute a breach of regulation 18 of the Australian Federal Police discipline regulations. The facts of the case are not in serious dispute for the most part. The evidence discloses that Operation Silage in respect of a major importation of cocaine from abroad commenced on 29 October 1990. Prior to that the police had received some intelligence which suggested that they could expect an importation of cocaine hidden inside industrial 2s wheels. On the date mentioned such a consignment of grinding wheels arrived in Sydney and came to the attention of customs officers who alerted the Australian Federal Police. Indeed cocaine was found secreted within the grinding wheels which had apparently been hollowed out for that purpose and restored to look whole after the introduction of the cocaine. Police quite properly removed the greater part of the cocaine leaving in one or more of the wheels in the two cartons in which they were contained a quantity of cocaine that amounted to something in excess of the trafficable quantity prescribed by the law. The wheels in question were then either replaced with substitute wheels or were reconstituted so as to appear as though they had not been interfered with by the police. As part of the operation a courier van driven by a member of the AFP delivered the two cartons and their contents to a home at Sylvania, a waterside suburb in southern Sydney. The home was the home of a gentleman named Turner who had some interest in trading of one kind and another and had become acquainted in the relatively recent past with one Jose Molina, who had arranged with Turner's consent to have these grinding wheels delivered to the Turner residence. I am not told precisely when the delivery was made but it was either on or shortly after Monday, 29 October. From then until Tuesday, 6 November the cartons, which had Bx been left on a porch at the Turner home, were kept under constant surveillance by police who had access to a nearby boatshed from which the Turner home was visible. There was also in place a telephone intercept on the Turner telephone. Nothing happened until Tuesday, 6 November at which time a decision was made to dismantle the surveillance and abandon the operation except to the extent of searching and questioning Mr Turner. This decision was made on the ground of cost, as the physical surveillance was running at the rate of 400 hours overtime per day. It happened that whilst police were at the Turner residence executing a search warrant and in conversation with Mr Turner a telephone call came in from the aforementioned Jose Molina. The call was taken by Mrs Turner and the information having reached the police that Molina, whose identity to this point was not known, was on his way to pick up the wheels, the operation was quickly reinstated and the co-operation of Turner secured. Molina arrived and took delivery of the cartons of wheels in his vehicle and departed, arriving eventually at the Enfield Boulevarde Hotel, which he ran in partnership with one Patrick John Gallaher. The police now had of course a target in Molina, who had set up this arrangement quite some time before and was actively involved in the transporting of the grinding wheels and the cocaine from one part of Sydney to another. They also had a fresh target in Patrick John Gallaher. Those two 4. persons, as I have mentioned, ran the hotel together and during the course of the evening of Tuesday, 6 November Gallaher was observed talking with Molina and another target, Diez, in the hotel and was also seen at the rear of the hotel making an inspection of the vehicle in which the cocaine was contained. Accordingly, on the following day, a decision was made at a high level of the AFP at the national headquarters in Canberra, to seek from a Judge of the Federal Court of Australia, warrants pursuant to the Telecommunications Interception Act, 1979. Late on the Wednesday, such warrants were secured in respect of a telephone at the hotel at Enfield and in respect of the telephone at the home of Gallaher in another suburb of Sydney, somewhat remote from Enfield. The latter telephone intercept became operative in the sense that conversations on that telephone line began to be audible to a monitor in Canberra and to be recorded by a recording device in Canberra shortly before 8.00 pm on Wednesday 7 November. Within minutes the monitor heard an incoming telephone call, a transcript of which is in evidence before the tribunal as exhibit A. He was able to realize that the call was coming in from a serving member of the Australian Federal Police to Gallaher, who was, at that time, a recently retired ex-member of the Australian Federal Police. The identity of the telephone caller was not immediately apparent, but was able to be made ina relatively short space of time. 5. The text of the telephone call embraces a variety of material, but importantly, the caller, who is admittedly the respondent Palmer, had this to say on page 1 of the transcript which is exhibit A: Mate, don't use the phone to the pub okay. and further on: 747 okay. The evidence discloses that the telephone number of the relevant telephone service commences with the digits 747. The conversation goes on with the respondent saying: Mate, that's off as of about two hours ago and Jose is still going down the gurgler pal, okay. The effect of these words was plainly to convey to the man Gallaher the intelligence that a phone in the business premises which he occupied and to which he had access had been tapped, or intercepted on behalf of the Australian Federal Police for the purpose of investigating criminal activity. The reference to "Jose still going down the gurgler", is plainly indicative of the fact that this was not the first intelligence that had been passed by the respondent to Gallaher in respect of this matter. 6s: Those words would have no meaning at all unless there had been a preceding transmission of information to Gallaher. That preceding phone call is now admitted. Whilst no breach of discipline is brought before the Tribunal in respect of the earlier telephone conversation, it dis appropriate to look at the circumstances of that earlier telephone conversation in conjunction with the circumstances of the telephone conversation, subject to the charge, in order to put the whole matter into context. The respondent admits making both the telephone calls; the first one being on his way to work on the Wednesday morning from a public telephone box in Camperdown to Gallaher's home. The second call was made from licensed premises in inner Sydney after he had finished work on the same day. There are really only two issues for determination. The first issue is whether the making of this telephone call in the evening and uttering of the words admitted amounts to disgraceful conduct and the second issue is whether, as claimed, the respondent has a lawful excuse for doing what he did. He told the Tribunal that on Tuesday 6 November he suspected that Gallaher might be involved in the importation. That evidence is to be found at page 22 of the transcript. It is important to note that Gallaher and Palmer had been associated closely together as working partners within the AFP for some years, and indeed that Palmer regarded Gallaher as 2. his mentor and one who trained him from being a novice to being a detective, who sometimes acted as a sergeant and was about to be recommended to that substantive rank. In addition to their professional association the two men also had a close personal association which involved not just the two of them, but their wives and children. In those circumstances, it may have presented a difficulty for Mr Palmer to face up to the reality that his good friend, Gallaher, might be involved in the importation of drugs. However, on the most spurious grounds, as I see them, by the Wednesday he had concluded that Gallaher was not involved. He had also concluded he says, that his superiors amongst the ranks of the Australian Federal Police were so biased against Gallaher and antagonistic to him that they would behave improperly, as I understand his case, and take the least excuse to charge Gallaher with this importation or at least involvement in it. He therefore says that his action in alerting Gallaher to the tapping of the hotel phone was not disgraceful and he also says that he had a lawful excuse for doing it. I must say that, in the view I take, he fails on both those issues. The proposition that he was simply alerting Gallaher to the guilt of Molina, so that Gallaher might distance himself from Molina, and that he was also warning Gallaher not to use the hotel phone because he might happen to say By. something that was mistaken as a code reference to drugs, does not really stand up to scrutiny because, in fact, the telephone call made in the evening goes beyond what the respondent claims to be its purpose. In the course of that telephone conversation (exhibit A at page 19) he is recorded as saying: "Diez's phone is off". That in the jargon used elsewhere in this telephone conversation is intended to convey the meaning that Diez - an undoubted target of the police in this operation - had also been the subject of a warrant Under the Act for the interception of his telephone. That part of the AFP's intelligence was of no use to the man, Gallaher, unless Gallaher were involved with the drug transaction. I asked Palmer this question in that context, at page 39: "That couldn't possibly assist Gallaher unless Gallaher had some guilty involvement in the drug transaction, could it?" The answer came: "I wouldn't think so, no." So that the justification sought to be advanced here in front of the Tribunal for alerting an innocent man to the fact that he might be about to receive some unfair treatment at the hands of his former superiors, just does not bear examination. Further on in conversation the respondent is recorded as saying: "If I don't see you in the dock beside me, we'll know we're okay." To which Gallaher replies: "Well, mate we've done nothin" and the respondent adds: "On this phone anyway". Further on again in the conversation (at page 27) there is some language used by the respondent which Dis, is an invitation to Gallaher to deny the happening of this very conversation. And towards the end of the conversation (at page 28 of exhibit A) the respondent undertakes to Gallaher that he will try to seek further information from within the AFP and transmit it to Gallaher. The respondent comes before the Tribunal with a relatively short career but one in which he has come under favourable notice and he comes before the Tribunal as a man of previous good character. However, I do not believe the explanation he gives for making the telephone call that he did. Even if I did believe him, his case may not be in any better state. The fact of the matter is, that he is a member of the Australian Federal Police, that he is bound by an oath that he swore and subscribed in 1983. He is also bound by the provisions of section 60A of the Australian Federal Police Act; the effect of that enactment is to render conduct such as I am examining here, criminal, and to provide a maximum penalty of two years imprisonment for such conduct. There is little help to be found in the law; either statutory or judge-made as to what is or is not disgraceful conduct in the context of the relevant regulation. I have however, been referred by Mr Boyle to a decision of the Full Court of the Supreme Court of South Australia in The Queen v. Teachers Appeal Board ex parte Bilney, 35 SASR 492. At page 494, Chief Justice King says this: 10. I venture to think that one may reasonably assign to the word "disgraceful" a meaning which implies something that is so dishonourable or disreputable as to warrant strong reprobation. Commander Valentin gave evidence about this matter and without objection expressed his view as to the nature of the conduct involved. He went so far as to say he would describe it as bordering upon treachery. The respondent himself at page 36 of the transcript acknowledged that it was a breach of duty and at page 38 of the transcript when he was confronted with a hypothetical scenario which had him in a position of command and one of his subordinates doing just what he's alleged to have done, he was asked this, question: Would you say it was disgraceful? He answered: In the circumstances you're talking about, yes. He went on to say: I can see that it could easily be thought of as being disgraceful, yes. 11. The element of lawful excuse puts him in no better position either. He was asked directly by Mr Erskine for the Commissioner (page 19 of the transcript): Do you think that you had a lawful excuse to pass information to Mr Gallaher. He answered: No, not cut and dry, no. And further on he said: No, I don't think it's lawful. So that notwithstanding the quite vigorous submissions on his behalf and the ingenious submissions on his behalf it has to be said that on both these issues on the admitted facts, the respondent himself acknowledges that his conduct could be seen as disgraceful and that he has no lawful excuse for it. During the course of the hearing an attempt was made to justify the conduct on the basis that Gallaher and the respondent both hold the view and held the view at the relevant time, that commissioned officers within the AFP were biased against Gallaher and that Palmer was justified in doing what he did for that reason. 2: I sought to contain that evidence because I really do not see the relevance of it. Even if it were true and I have not explored it and I have sought to resist the exploration of it - even if it were true, to behave as the respondent did was not an appropriate way to deal with the state of affairs he asserted. The Australian Federal Police would become quite unworkable if an expensive operation mounted at a very high level of command could be aborted freely by a very junior officer for reasons of his own which have nothing to do with the policy or the priorities of the Australian Federal Police. Commander Valentin's views are not binding on the Tribunal, of course. I do, however, find them helpful. At the end of the day it is a matter for me to adjudge the quality of the respondent's behaviour. I cannot imagine that any fair minded person confronted with these facts and taking one step backwards and looking at them coldly for five minutes would not regard the telephone call that the respondent made at 8.00 pm on 6 November 1990, as disgraceful. There is no lawful excuse for it and I find the breach de out. I remit the proceedings to the Commissioner for e/imposition ef penalty. \ B.R. MAGUIRE MEMBER