IN THE FEDERAL POLICE ) ) No. FPDT 1 of 1994 "DISCIPLINARY TRIBUNAL) BETWEEN: COMMISSIONER OF POLICE Applicant AND: SERGEANT ALAN FRANCES BARBOUR Respondent RD R M.L. FOSTER J (PRESIDENT) 16 SEPTEMBER 1994 CANBERRA THE TRIBUNAL QORDE THAT: (1) A finding of guilt be entered in respect of Proceedings ABMJ004; (2) Proceedings ABMJ001 be dismissed; (3) Proceedings ABMJ002 be dismissed; (4) Proceedings ABMJ003 be dismissed; (5) The Commissioner pay the costs of Proceedings ABMJ001, ABMJ002 and ABMJ003; (6) Sergeant Alan Frances Barbour pay the- costs of Proceedings ABMJ004; (7) An admonishment be administered in respect of Proceedings ABMJ004. IN THE FEDERAL POLICE ) ) No. FPDT 1 of 1994 DISCIPLINARY TRIBUNAL ) BETWEEN: COMMISSIONER OF POLICE Applicant AND: SERGEANT ALAN FRANCIS BARBOUR Respondent CORAM: M.L. FOSTER J (PRESIDENT) DATE: 16 SEPTEMBER 1994 PLACE: CANBERRA REASONS FOR DECISION _ (Extempore) HIS HONOUR: In these proceedings it is alleged on behalf of the Commissioner of the Australian Federal Police that Sergeant Alan Francis Barbour has committed certain disciplinary offences, specified in regulations 18(1)(d) and 18(1)(g) of the Australian Federal Police Discipline Regulations. the precise nature of which I shall refer to hereafter. It is first necessary to set out some facts by way of background. The alleged offences relate to events said to have occurred late in the evening of 2 January 1993, during the period of the annual festival in Canberra known colloquially as 'the Summernats. On that evening, what has been described as the highlight of the festival was held, 2. namely, a parade of motor vehicles modified in various ways by enthusiastic owners. In this parade it was intended that they be exhibited to spectators by being driven in close convoy, under police supervision, from the National Exhibition Centre, NATEX, at the northern end of Canberra, down Northbourne Avenue in a southerly direction to the city and thereafter, in a northerly direction on the opposite side of Northbourne Avenue, back to NATEX. . The parade was known as the Supercruise. In previous years it had attracted considerable public interest, with spectators lining the sides of Northbourne Avenue to view the event. It appears that in those years, although a carnival "atmosphere prevailed, the crowd was not particularly unruly and it was possible for the police to control the event and the spectators without undue difficulty. The situation with the 1993 Supercruise was markedly different. The police followed a plan of crowd control which had been laid down with care. It consisted of foot patrols in designated areas of Northbourne Avenue and aiso mobile patrols in police vehicles. It was anticipated that some misbehaviour could occur and that arrests would take place. Provision was made for persons who might be arrested being taken in appropriately secure vehicles, described as cage vehicles, to the police station at Civic Centre or other stations, if necessary, so that the arrests could be processed in accordance with law. Police personnel were organised in 3. shifts designed to provide appropriate breaks. A radio communication network for police vehicles was provided; also, individual officers were issued with mobile radios. Regular briefings occurred on procedures to be followed. An overall operation order was prepared to cover the whole period of the Summernats from 31 December 1992 to Sunday, 3 January 1992. This document was tendered in evidence; I shall make reference to it later. - The difference between the 1993 Supercruise and previous events was that the spectator crowd was vastly larger than had been reasonably anticipated and contained an unexpectedly high proportion of the hoodlum element. The cruise consisting of about 100 vehicles began in an orderly fashion at approximately 7.30 pm but was never completed. Because of unruly activity on the part of sections of the crowd it simply broke up and disintegrated. At numerous points the crowd surged onto the roadway and prevented the movement of the vehicles. Oil was unlawfully poured on the road surface so that vehicles engaged in what was described as burn-outs. Vehicles other than those properly engaged in the parade joined in from side streets. Some of these vehicles became engaged in water fights with spectators. These fights were conducted through the use of powerful water pistols brought to the carnival for that purpose. Some of these fights were good natured and conducted in a carnival-type 4, spirit; some were not. There were many instances of physical violence and also malicious damage to property. A video film shown as part of the evidence in the case vividly demonstrated the nature of this violence. A traffic control light standard at a major intersection was pulled down by a crowd of drunken hooligans in circumstances where the police were powerless to intervene. Rowdy and unruly activity of this kind, largely contributed to by the excessive consumption of alcohol by elements of the crowd, continued from early in the evening to the early hours of the Sunday morning. The task of the police was unenviable. They were completely outnumbered and rapidly became unable to control the situation. The foot patrols were subject to overt hostility. Missiles were thrown at them consisting of stones, bottles and the like. They were not infrequently in personal danger. Eventually they were picked up in police vehicles for their own protection and also for their more useful deployment, in the sense that it thereby became possible to concentrate larger numbers of police at particular trouble spots. The radio network was utilised for this purpose. The police vehicles used for this purpose were small buses which could transport some 15 to 20 police officers, seated or standing. Sergeant Barbour was originally patrolling on foot with a companion in a designated area of Northbourne Avenue. He later was in charge of such a police bus operating in 5. Northbourne Avenue and also required to perform surveillance, iff required, in areas off the Avenue in surrounding suburbs. In the first instance, he used the bus to collect personnel on foot patrol. He had their welfare in mind and sought to get them out of dangerous situations. He also responded to radio requests for assistance by attending trouble spots and deploying the officers in the bus. The bus was, so far as the evidence indicates, always fully loaded with policemen or women, although from time to time some would leave it and others join it. It had three doors. Two doors at the front gave access to an area which contained seats for the driver and passenger. This area was partly separated from the rest of the interior of the vehicle by a raised interior step. The third door gave access, on the passenger side of the vehicle, to the main compartment of. the vehicle. It was situated approximately in the middle of the bus. The main compartment had a central aisle, with seats on either side. Each row of seats was adjacent to a window. That evening, before Sergeant Barbour assumed charge of the vehicle, one of the windows had been smashed by a thrown bottle. It is indicative of the demands being made on the police, that no time had been available to clear away the broken glass, which was lying on the adjacent seat and floor. The vehicle was adapted for the ordinary transport of police 6. personnel. It is acknowledged that it was unsuitable for the conveyance of prisoners, especially if it was necessary to exercise physical control over them. The events with which this case is concerned relate to the arrest of two young men, Kenneth Falconer and Michael Cole, their detention on the bus, their transportation on it and their ultimate release from it. These events occurred while Sergeant Barbour was in charge of the bus. It is in relation. to those matters that the relevant breaches of regulation by him are alleged to have occurred. Before coming to those events, it is convenient to set out certain matters in relation to the Sergeant himself. He has relied upon his good character' and reputation, in partial answer to the charges made against him. He is amply justified in so doing. He bears an excellent character. His reputation as a policeman is of the highest order. He is most highly regarded by his superior officers, and by those who serve under him. He was described in evidence aS an asset to the police force. He has an unblemished reputation for honesty and integrity. The evidence clearly establishes that he has particular skills in the control and supervision of junior personnel under his command. In dealing with unruly persons, he is fair and firm. His capacity to deal effectively with different situations, as Senior Sergeant in the City Beat 7. Squad has been highly commended by his seniors, and by businessmen operating in the city area. He serves as a police representative on significant inter-departmental committees. He was handpicked by Superintendent Taylor, the officer in charge of the Summernats operation, for a highly responsible role in that operation, because of his personal qualities and proven efficiency. It is also of note that since the original complaint was made in this matter, during the inquiry by the Internal Investigation Division, IID, which preceded the laying of these charges, and up to the present, he has continued in his job in serving upon the committees, and has, in fact, conducted inquiries on behalf of IID. It is also proper to observe that at the time of the alleged breaches, he had been working since the commencement of Summernats, three days before, extremely long hours, under the most trying and tiring conditions. It is extremely proper that Sergeant Barbour's character and reputation should be taken into account in his favour, on the question of his guilt or innocence of these alleged breacnes. It is convenient, at this point, to consider the standard of proof that should be applied in these proceedings. As at January 1993, Regulation 9 of the Complaints Australian Federal Police Regulations required that breaches of regulations be proved beyond reasonable doubt. Since then, the regulation has been amended, so that proof is now required 8. only on the balance of probabilities. Obviously, this provision would still comply with what is generally described as the "Brigenshaw standard". That is comfortable satisfaction, having regard to and in conformity with the seriousness of the allegations made. On behalf of the Sergeant, it is submitted that he is entitled to the former and higher standard of proof, on the basis that the alleged offences occurred before the relevant amendment. This question has recently been considered by a member of this tribunal, Mr David QC, in Matter No 3 of 1993, where he held that the lesser standard applies to all matters heard after the date of the amendment, whatever the date of the alleged regulatory breaches. I respectfully agree with his decision, and the reasoning on which it is founded. In my opinion, the question is determined by the decision of the High Court in Rodway v R (1990) 169 CLR 515. (See also Maxwell v Murphy (1957) 96 CLR 261 at 278.) The amendment, in my view, should be regarded as relating to practice and procedure at trial, and not as impairing pre-existing substantive rights. I approach the determination in this matter on the basis of the Brigenshaw standard. I come then to the facts involved in the alleged breaches. Put compendiously, it is alleged by the Commissioner that the two young men were arrested by personnel 9. from Sergeant Barbour's bus at about 11.25 pm, at a position in front of the Dickson Motor Registry in Northbourne Avenue. They were taken aboard the bus against their will. They were assaulted. They were transported, against their will, for a period of about 12 minutes, to a fairly remote area in Ainslie. They were subject to mistreatment on the journey. Their complaints were ignored. They were put off the bus separately, at separate locations, to find their own way back. Their arrest and subsequent release was not recorded or documented, and their welfare was ignored. It was alleged that the Sergeant was privy to this conduct, and failed in his supervision of the personnel under his command. Four separate breaches of regulation were alleged against Sergeant Barbour. The hearing occupied eleven days. The transcript of evidence and argument runs to over 950 pages, together with many pages of exhibits, including some lengthy transcripts of interviews with investigating officers of IID. Some 20 witnesses gave evidence. Since the completion of the hearing I have read and considered carefully the whole of the evidence, including the exhibits. I do not intend to refer to it in any detail in these reasons. In particular I do not intend to make specific findings as to the credibility or reliability of each of the police personnel on the bus. All gave evidence, with the exception of one who was overseas and 10. whose transcript of interview with IID was tendered, by consent, in place of oral testimony. During the course of his final address, counsel for the Commissioner specifically abandoned one of the charges; conceding that there was no evidence to support it. I accordingly dismissed it. This charge alleged that Sergeant Barbour had committed the disciplinary offence under regulation 18(1)(d) of disgraceful conduct in giving knowingly false answers when being interviewed by officers of IID. It was alleged that he had falsely denied seeing "any assault on the males by any members on the bus" and observing "any assaults upon the two males whilst you were on board." There was, indeed, no evidence that the Sergeant had made any such personal observations which would have rendered his answers false. This charge was the only one that carried any allegation of an assault upon Michael Cole. He had given evidence of having received a blow to his left ear whilst being arrested which had caused temporary deafness and dizziness and in respect of which he had subsequently sought medical assistance. The medical evidence was equivocal; it appeared that his basic problem was a middle ear infection which cleared up after being treated by antibiotics by his local doctor. I would not, in any event, have been prepared to find on the evidence that he was struck any deliberate blow 11. to this ear, or that he was manhandled in such a way as to 'pose an unlawful risk of injury to his ear. It is convenient to deal in the first instance with the second charge against Sergeant Barbour. It alleges an offence under regulation 18(1)(d) of disgraceful conduct in that whilst officer-in-charge of the bus "by your omission to act did become knowingly concerned in an assault on Kenneth Falconer by unknown members of the Australian Federal Police." This charge was defended on the alternative bases that the tribunal would not be satisfied that there was an assault on Falconer, or that if it were, Sergeant Barbour was not knowingly concerned in it. Falconer, shortly after being put off the bus in Ainslie, had made his way to the police station at Civic and complained of being assaulted. He subsequently sought and obtained medical and attention for injuries at Woden Valley Hospital where he made a similar complaint. He later complained to the Ombudsman which complaint led to an investigation by IID. He gave a recorded interview which is in evidence. He also gave lengthy evidence before me in which he made detailed allegations of assault upon him whilst being taken on to the bus and whilst in the bus. It is necessary to consider his version in some detail. In the first place I am satisfied that neither he nor Cole were part of the hoodlum element that had caused such 12. problems that night. They had arrived at a position on the grass outside the Motor Registry earlier in the evening with a view to spending the evening of the Super Cruise at that point of vantage. Mr Falconer was from Sydney and was staying with his sister, a Canberra resident, who had come with him to the Motor Registry. They were in company with other friends. Both Messrs Falconer and Cole had come prepared to engage in water fights with spectators and with passing vehicles. It appears that it was expected that this activity would occur and was regarded as a significant part of the evening's fun. They expected to receive as good as they gave. They obviously indulged in the activity of spraying other spectators and passing vehicles to a considerable extent. It would seem they picked willing targets. There was no suggestion that they caused any particular offence or disturbance. I gained the clear impression that Mr Falconer was an excitable, rather highly strung young man who probably got rather carried away with this activity. It appears that he was consistently crossing the Avenue to fill receptacles with water in order to carry on this somewhat mindless enterprise which he obviously pursued with considerable enthusiasm. It is quite clear that he hurled a bucketful of water at the bus containing Sergeant Barbour and police personnel. This occurred at about 11.25 pm when the bus was proceeding to deal 13. with a problem further south in Northbourne Avenue. So much appears from the radio log. Sergeant Barbour was in the front passenger seat. The bus was fully occupied, apart from the seat which had broken glass on it. It is possible that some personnel were standing. The bus was less than four metres in length. It would have been fairly crowded. Indeed, one member, Constable Weldon was, in fact, standing in the open doorway in the centre of the bus. The water went through the open window beside Sergeant Barbour wetting him. Constable Weldon was drenched. It is clear that some water also entered the bus through other windows. The bus was proceeding slowly and quickly came to a halt. I am not impressed with Falconer's evidence that the wetting 'of the bus was the accidental by-product of an exchange of water with a vehicle proceeding closely in front of it. He said that this was a black vehicle, armed with a powerful water pistol and that it was his real target. He had hurled the contents of a bucket of water at it and the arc of his delivery had caused some of the water to strike the bus, the presence of which he had not noticed. This is somewhat in conflict with what he told IID when the impression was given that he had made the bus a target without realising it was a police vehicle. I think this to be the correct position, his present version being an example of a tendency, on his part, to embellish the evidence in his favour. 14. I am satisfied, however, that the police were not amused. From their perspective, of course, the attack was typical of what they had been subjected to elsewhere throughout the course of the evening. There would have been nothing to differentiate it from the hooliganism which was all too prevalent. I consider that at least some members were angry at the incident. Sergeant Barbour stopped the bus with the intention of the offenders being arrested. I am satisfied that Constable McNeill, a mature and sensible policewoman with 14% years experience in the Force, who was seated behind the driver and whose evidence I have found helpful, heard one of the numerous officers who left the bus to effect the arrest, say, "You've got the wrong bus this time". I am also satisfied that while Mr Falconer's sister sought to intervene when he was arrested, she was told in an intimidating way by one of the constables that "she could be put in the bus too". This gives some indication of the prevailing atmosphere. Quite clearly, a large number of police left the bus, Sergeant Barbour being one. From those seated in front of the centre door, only the driver and a Constable Sutherland remained inside. Constable McNeill, who had been sitting opposite him on the driver side, also followed the police outside. Some younger constables, including females, remained towards the back of the bus. It is clear that Mc Falconer, who had thrown the water, was arrested quickly, although the evidence does not establish who effected the arrest. He was brought to the 15. door, where I accept he came under the control of Constable Sutherland. It is clear that it is Sutherland who is the subject of allegations of assault upon Falconer. The evidence points only to him. He is no longer a member of the police force having retired last year. He gave evidence. He is a strongly built thick-set man of middle years and answers in general terms to FPalconer's description of his assailant. It was clearly put to Sutherland by counsel for the Commissioner that he had assaulted Faliconer. This was denied. He also had the benefit of the submission by counsel for Sergeant Barbour that I should find that no assault was committed. I am satisfied therefore that there is no denial of natural justice in my making against him the finding which I do, that he committed an assault on Falconer. It is the nature, extent, and timing of the assault which is, however, critical in relation to the charges against Sergeant Barbour. Falconer gave evidence that Sutherland attacked him with considerable ferocity. In the first place he said that Sutherland punched him forcefully outside the bus, in the doorway. He gives a description o1 a not inconsiderable fight between them. Despite the fact that it was night, I am satisfied that this attack would have been visible to Falconer's friends who were nearby. They gave no evidence of it. I am not satisfied that it occurred. The likelihoods of the situation are against it. Mr Falconer continued by saying that a very serious attack was made upon him inside the bus. The constable, who could only be 16. Sutherland, pulled him inside the bus, forcibly removed him from the seat which he went to sit on, pushed him to the floor in a prone position, rammed his head against the metal frame of a seat at floor level and rained punches on his head and back. He then dragged him up by the scruff of his neck, spoke to him in a most abusive and threatening manner in a face to face position, and then thrust him back in a prone position on the floor. - Mr Falconer says, in effect, that this occurred when the vehicle was moving and that it, or similar highly aggressive behaviour, occurred again later in the journey. He says, in summary, that he lay on the floor in constant fear of attack and averted it only by feigning sobbing. I am not able to accept this account in its entirety. There are many problems about Falconer's evidence. His version to the IID, given shortly afterwards, is highly emotional and somewhat incoherent. It certainly contains statements to the effect that he took an aggressive role in defending himself, and that he was punching at Sutherland. There is no suggestion in the evidence before me that he took anything other tnan a passive and defensive posture. He gives a highly circumstantial version about having been taken off the bus at some intermediate stopping place and brought back on again. Cole, he says, was similarly treated. This incident, TI am satisfied, did not occur. He may have been about to alight at the ambulance depot, to which I shall make reference later. If 17. so his account is highly embellished and inconsistent with other evidence which I accept. Also, he gave evidence of things being said on the bus relating to the town of Goulburn and the Sydney suburb of Liverpool which I am satisfied could not have been said. For these and other reasons, I am prepared to give only limited credence to his testimony. It may be noted that he conceded that he had trouble recalling the sequence of events in the evening. . On the other hand, I reject the submission that he suffered no assault at all. My conclusion is that Sutherland, faced with controlling a large well built youth in the unsuitable situation of the bus, set about dealing with him by intimidation. He did this immediately. He admits that in his own words he "reefed" Mr Falconer from the seat and put him on the floor. I am satisfied that, at the same time, he forced him into a prone position during which Falconer's head came in contact with the metal frame of the seat. I consider that he punched him in the head with sufficient force to cause the three or four haematomas which were found later that evening at the Woden Valley Hospital. I am not persuaded that he punched him in the back as alleged. No supporting marks were found. I am satisfied however that Falconer, in this episode, received a laceration to his forehead which bled. This was seen by the doctor at the hospital. It was a minor laceration requiring no stitching or taping. It was also visible to Mr Johnson and Ms Lange who 18. helped him shortly after he had been dropped off the bus at Ainslie. Falconers's injuries support his allegations of assault as does the evidence of the witnesses, Mesdames Radovanovic and Gray, who saw what looked like punching through the window of the bus. It is also clear that he was angry at his treatment and complained early and loudly that he had been assaulted. He also alleged that an attempt had been made to break his nose which he had successfully fought off. This allegation, in all the circumstances, does not ring true. I consider that he was cowed and humiliated by Sutherland's treatment of him and that he was also angry and that his emotional response has led him to exaggerate what occurred. My determination that he was assaulted is not affected by evidence to the contrary from those in the bus, who might have been in a position to see despite the fact that it was dark. That evidence does not dissuade me from accepting what I consider to be a hard core of truth in Falconer's evidence. However, I am satisfied that it was all over by the time that Constable McNeill returned to her position in the bus. She accidentally trod on Mr Falconer as She did so. I am satisfied that this treading was, in fact, the stomping of which Falconer complained and which he alleged occurred later in the journey. The imprint of her boot on his shirt, which is part of the evidence in this case, is, in my view, most consistent with Mr Falconer being in a prone 19. position on the floor where Sutherland had forced him. He was in this position at the time when Constable McNeill trod on him. She had not expected him to be present. She did not see him. She withdrew her foot instantly, but there had been sufficient force to leave an impression on his shirt. I am satisfied, however, that shortly thereafter he was able to adopt a more upright posture which he maintained thereafter. He was seen in this position by many witnesses on the bus. I am also satisfied that had Constable McNeill seen him being assaulted she would have voiced her objection. Sergeant Barbour was the last to get back on the bus. He had been busy outside assisting in the arrest of Mr Cole, and, after that arrest had been effected, in rounding up the police personnel who were at various positions in the area. I am satisfied that he saw nothing of the assault. Indeed, it would have been totally out of character for him to have allowed it to happen had he been aware of it. I unhesitatingly acquit him of being knowingly concerned in it. I dismiss this charge which, in my view, is the most serious of the charges brought against him. The next charge is that the Sergeant was guilty of disgraceful conduct in that, whilst the officer in charge of the bus, he caused Messrs Falconer and Cole, who had been arrested, "to be detained and transported against their will from a point in Dickson to points in Ainslie where at the said Kenneth Falconer and Michael Cole were released from the bus 20. at separate locations which detention and transportation was an abuse of power not directed to the lawful processing of the arrests". It is clear from the submissions made on behalf of the Commissioner, that this charge relates to an alleged unlawful practice going under the colourful name of "Gundarooing". This phrase signifies the removal of an offender from the scene of an offence, particularly a breach of the peace, and the depositing of him some considerable distance away in remote surroundings so that he will suffer de facto punishment for his infringement and have the opportunity to cool off whilst laboriously making his return to civilisation. I was told it was a form of rough justice meted out in early days. Whatever the situation, it would clearly be an unlawful practice which could not be condoned. Specifically, it was said that Sergeant Barbour, in the prevailing circumstances of the night, decided to transport these two young men to a remote suburban spot and simply release them rather than undertake the difficult procedure of having them transported to a police station and properly dealt with in accordance with law. It was said that this unlawful plan could be properly inferred from a sequence of radio log entries attributed to the Sergeant's call sign. Put compendiously, the Sergeant had radioed base to say that he could not attend the disturbance to which he was heading 21. before the water throwing episode because he had prisoners aboard. An offer was received shortly thereafter over the radio from a cage vehicle that it would attend and remove the prisoners. Such a procedure would have been a proper one to follow and would have relieved the Sergeant of the embarrassing presence of the prisoners on board his bus. He accepted the offer, but shortly thereafter deleted the acceptance on the basis that the problem was solved. It is submitted against him that he had then decided not to follow the proper procedure, despite its obvious advantage, but had resolved to "Gundaroo" the prisoners instead. Why a person of the Sergeant's character and probity should choose an illegal solution when a legal one was conveniently at hand is difficult to imagine. In any event, the evidence satisfies me that the solution referred to on the radio by the Sergeant was of a different kind. Close by to the point of arrest, there was an ambulance station which was being used by the police as a convenient stopping place and assembly point. It was close to Northbourne Avenue and visible to the Sergeant as the bus approached it. The Sergeant's evidence, which I accept, is that he saw a police vehicle stationary in the depot. He thought it was a caged vehicle which he would be able to use. Accordingly, he cancelled the other vehicle. It was not a good decision to make before he had verified that it was, in 22. fact, a caged vehicle and available to take the prisoners. However, in the prevailing circumstances of the night it was an understandable decision. In fact, when the bus was driven into the depot it transpired that the police vehicle was not in fact a caged vehicle but was an Accident Squad vehicle not appropriate for the transport of prisoners. Thus, the problem of disposal of the prisoners was not solved. However, I am satisfied that in the prevailing conditions and in the state of darkness that existed, it was a reasonable mistake made by the Sergeant in failing to identify the real nature of this vehicle stationary at the depot. It is submitted by the Commissioner in the alternative that the Sergeant then made the decision to go to some remote spot in Ainslie and dispose of the two men by the process of "Gundarooing". Undoubtedly, the bus was taken to Ainslie and the prisoners were then released at remote locations. The question is, did the Sergeant on the balance of probabilities, take the bus to Ainslie for that purpose? Had there been no other reason for going there, such an inference would have been distinctly open. However, on the evidence there was another reason. The Sergeant says he was approached by a civilian who complained that vehicles were creating a disturbance near the Ainslie Shopping Centre and requested police intervention. 23. The Sergeant had, as part of his duties, the requirement that he deal with complaints in suburbs surrounding Northbourne Avenue. It was a duty which Superintendent Taylor said was: "In hindsight, more than he should have been burdened with." At that point of time, Sergeant Barbour had the problem of disposing of the prisoners in the course of their proper processing, the still unanswered call for assistance to the south in Northbourne Avenue and also a fresh request to assist in transporting personnel to the Natex Centre where they were required. These calls upon him were in addition to the civilian's request which was made, in irate terms, face-to-face. ~~ He chose to answer the civilian's request as being something he was in a position to deal with promptly. He acknowledges that, in hindsight, with prisoners still on the bus, it was not the best decision to make. However, it was within his operational discretion and made under pressure. It is not conceded by the Commissioner, I should say, that the Sergeant actually received the request from the civilian. Other members on the bus and at tne depot support tnis fact, but there is some conflict as to when the request was made. Some say an approach was made in Northbourne Avenue and another that it occurred when the journey towards Ainslie had already begun. There is concurrence, however, that such a request was received. 24. I am not prepared to find that the Sergeant has simply concocted the story about the civilian request to suit his case. On balance, I accept that it occurred. Accordingly, this charge of ""Gundarooing" also fails and I dismiss it. The final charge is of a disciplinary offence pursuant to regulation 18(1)(g) of the Australian Federal Police Discipline Regulations, namely, "acting in a manner that brings, or is likely to bring, discredit to the reputation of the Australian Federal Police". A breach of this regulation does not, in my opinion, require "any specific intent on the part of the officer charged to bring such discredit on the police. Indeed, it could be said of Sergeant Barbour that in no part of his policing activities would he ever have had such an intent. To the contrary, I am satisfied that, generally speaking, he has always sought to reflect credit on the body of which he has been a proud member for so many years. The question of whether a breach of this regulation has occurred must be resolved by taking a quite objective view of the circumstances surrounding the alleged breach and the actual likely result of the actions which are called in question. The particulars relied upon to support the alleged breach are as follows: 25. "That whilst on board and in charge of the police bus, (Sergeant Barbour) did so supervise the detention of Kenneth Falconer and Michael Cole that: (a) You failed to ensure that Mr Falconer was not assaulted whilst on the bus; (b) You failed to notice that Mr Falconer had sustained visible injuries as a result of being assaulted whilst on the bus by unknown member/s of the Australian Federal Police; (c) You failed at the time of the said assault of Mr Falconer, or shortly thereafter, to ascertain the identity of Mr Falconer's assailant/s; (d). You failed to ascertain why Mr Falconer and Mr Cole were placed on the floor of the bus, by whom, and whether such action was reasonable and necessary; (e) You failed to identify the arresting officer/s on Mr Falconer; (f° You failed to ensure that the names of Mr Falconer and Mr Cole were properly recorded in official AFP records; (g) You failed to ensure that a written record was kept of the undertakings given by Mr Falconer and Mr Cole not to engage in breaches of the peace." Particular (a) is not made out. I am, as I already indicated, satisfied that the assault on Mr Falconer took place while Sergeant Barbour was off the bus and unaware of it. No relevant failure of supervision has been established in this regard. Particulars (b) and (c) should, in my view, be read together. So read, they allege compendiously that the Sergeant, by failure of supervision in the bus, put himself in the position of not noticing Falconer's visible injuries and 26. thereby inquiring as to whether he had been assaulted by any member on the bus and, if so, by whom. It is quite plain from his past history that if he had become aware of these matters at the time, he would in my view have taken appropriate action. As to particular (d), it is clear that the Sergeant was aware that both Mr Falconer and Mr Cole were seated on the floor of the bus. I am satisfied that at times, certainly in the early stages of the journey, they had each been placed on the floor in uncomfortable and humiliating positions, by being prone or-crouched on hands and knees. I am not satisfied, on the whole of the evidence, that they were required to maintain these positions after the initial phase of arrest was over. The Sergeant had given only a hasty glance down the bus when he re-entered it after the arrests had been made at the Motor Registry at Dickson. He was concerned quickly to leave what he reasonably regarded as a trouble spot, and to ensure that all police were safely back on board. In any event, there was poor lighting outside and none at all inside the bus. He would not necessarily have noticed anything untoward in relation to the seating of the prisoners, other than that they were on the floor of a bus in which seats were otherwise occupied and some personnel were standing. I am satisfied that, later in the journey, he became aware that they were still on the floor. Was it a failure of reasonable supervision on his part that he took no steps to 27. alter this situation? With some hesitation, I have come to the conclusion that it was not. The circumstances must not be lost sight of. The whole period of their detention on the bus was not much more than 12 minutes; a tiny fraction of the time that was spent that night in dealing with one crisis after another occasioned by unruly behaviour of the crowd in Northbourne Avenue and surrounding areas. The acts in respect of which the arrests had been made would have appeared as part of the general hooligan activity which was occasioning so many problems. The bus was totally unsuitable for detaining, transporting, and controlling prisoners who might have been disposed to struggle and cauSé serious disturbance within the confines of what was a relatively small vehicle. In these circumstances, their positioning on the floor was an aid to control and indeed rendered them less prone to injury from any missiles which might have been directed at the bus windows. It may well have been that when, as was the case, the prisoners demonstrated docility, they should have been given the comfort of a seat, especially when the bus had left Northbourne Avenue. However, having regard to the brief time-span involved and in all the surrounding circumstances, I am not prepared to find a culpable failure of supervision established in this respect. The remaining particulars relate to alleged breaches of procedure relating to the arrest and release of the two men. In this area two main topics have arisen for debate. 28. The first is the question of Sergeant Barbour's general role in relation to the prisoners on the bus. It was argued on his behalf that he, in effect, had no significant role at all unless in some fashion he was called upon specifically to intervene in relation to their treatment or welfare. It was put that he was entitled to rely upon the constables, who had effected the relevant arrests, to obey the relevant rules and take responsibility for the prisoners, both on and off the bus. The Sergeant's role was merely passive. No action was required of him unless some _ specific infringement or problem in relation to the priscners was brought to his attention by the relevant constables. It was not even necessary that he ascertain who had effected the arrests and for what reason. For instance, was it for breach of the peace, actual or threatened, or for some specific offence such as assaulting the police. I am unable to accept that the Sergeant had any such minor role, He was in charge of the bus and its occupants. He was, in general terms, responsible for the supervision of their behaviour. Even in the difficult circumstances prevailing, he could not ignore the presence of the prisoners and dissociate himself from questions relating to the legality of their treatment. In the circumstances of the night, the bus could reasonably be likened, in my opinion, to a mobile police station of which he was the Station Sergeant. There were constables on board, some of whom were strangers to him. There were prisoners necessarily confined in close contact 29. with them. He had at all times the position of overall responsibility for the constables and their prisoners. It could not be abdicated, however difficult the prevailing circumstances. Indeed it must be borne in mind that the Sergeant did in fact take it upon himself to order their release from the bus. He did so without consultation with the arresting constables and indeed without ascertaining their identity. - Before dealing with the second topic, I should indicate the facts that I find to have occurred after Sergeant Barbour sought to comply with the civilian's request to investigate problems in Ainslie. The bus went to the vicinity of the Ainslie Shopping Centre at the Sergeant's direction. No offending vehicles or persons were there found. The Sergeant then made what I find to be virtually a "spur of the moment" decision, to put each of the prisoners off the bus at separate locations in the general area where they were. This was not, of course, a remote bushland area but it was a suburban area at some considerable distance from the point of their arrest. He gave a peremptory order for Mr Falconer to leave the bus at an area near the Ainslie Shopping Centre, where there was a small park with some surrounding habitation, The area was dark. Mr Cole was similarly put off the bus at an area near an hotel. It was also dark. Sergeant Barbour made no inspection of the men. He did not ask them whether they had any complaints. He 30. did not ascertain whether they were injured in any way or whether they could have any particular difficulty in finding their way back. He did not leave his seat at the front of the bus. He gave some verbal warning to each man from that position after they had left the bus as to their not repeating the behaviour which had led to their arrest. It is not clear whether either man heard this warning or appreciated it. It is clear that neither gave any formal acknowledgment of it or gave any undertaking ~ oral or in writing - not to offend again. Why was this course taken? I consider that it was prompted at least in part by an awareness of Sergeant Barbour that there was an atmosphere of hostility in the bus towards the prisoners over which he could not exercise effective control. The evidence establishes that it was generally recognised by senior officers of the force that a Sergeant should not be expected to exercise close supervision over more than five constables. Sergeant Barbour had upwards of 15 constables under his command in the bus, many of whom were not well known to him and many of whom were fairly junior. They had all been subjected to considerable levels of stress during the night. I am satisfied that some were reacting to this by taunting the prisoners verbally. Constable McNeill, at the front of the bus, was able to hear Mr Cole complaining that he had a sore ear and wanted to go to hospital. She could hear him being told to "shut up." Constable Jamieson who was seated near Mr 31. Cole, could hear him wailing and moaning at times and at other times uttering threats to his captors. Constable McNeill, at the front of the bus, heard both men, at times, exclaim that they wanted to be let off the bus. When Mr Falconer was released from the bus, he fell over. I am satisfied, on the evidence of Constable McNeill, that this event was the subject of some laughter on the bus. There was, I am satisfied, a high level of noise in the bus, both from conversations and from the engine and radio. I am satisfied that Sergeant Barbour was not able to hear specifically any of these things. ~~ However, when in the Ainslie area, he was, I am satisfied, at least peripherally aware of them. I feel comfortably satisfied that in a snap decision he resolved to deal with the developing situation over which he could not exercise effective control by putting the prisoners off the bus in the way in which it was done. It was a decision which I am satisfied he regrets. As he said in evidence, in hindsight, he would have acted difterently. This brings me to the second topic. It was argued on behalf of the Sergeant that his actions were justified having regard to what was said to be an accepted procedural practice under which a policeman who had arrested a citizen for actual or threatened breach of the peace could release the person arrested when the breach or threat ceased, upon 32. obtaining a written undertaking from that person not to offend again. Instances of this having been done during the Summernats were referred to in evidence. It was argued that in difficult circumstances, at the discretion of the arresting policeman, the requirement of a written undertaking could be foregone and a verbal undertaking be accepted as sufficient. It was submitted that the Sergeant's actions in relation to the release of Messrs Falconer and Cole broadly fell within the scope of this practice and were legitimated by it. During argument, I expressed misgivings as to the practicé: I understand that it is under review. In these circumstances, I do not intend to undertake any investigation as to whether it has a sound legal basis. Indeed, such an inquiry would be irrelevant, as the existence of such an established and recognised practice could obviously be relied upon by a policeman in the field as justification for actions taken pursuant to it. What does the evidence reveal as to the practice, its nature and scope? The situation is not clear. The operation order for the Summernats, a document to which I made reference earlier, contains the following material under the heading Arrests or Persons Taken Into Protective Custody:- "When a person is either arrested or taken into protective custody, they will be conveyed to the City Watchhouse or Belconnen or Woden if the need 33. arises as soon as practicable. Under no circumstances should persons in custody remain at NATEX for any longer than is absolutely necessary. The member who placed the person in custody must accompany that person to the watchhouse. Where ever possible a polaroid camera and an arrest sheet containing details of the offender and arresting members should be utilised at the time of the arrest. Details of all persons arrested, summonsed or placed in protective custody are to be made available to the City District Patrol Tactician prior to the cessation of their shift." It is, not disputed that Messrs Falconer and Cole were the subject of arrest, In these circumstances, in accordance with the order, they should have been taken by the arresting officers to the watchhouse for processing. Indeed, it is clear that it was the initial intention of Sergeant Barbour that this' be done. Had the police vehicle at the ambulance station been a caged vehicle, it would have been done. Indeed, if it was the intention that those arrested be charged with a substantive offence, it was absolutely essential that they be taken to a police station, charged and brought, at the first opportunity, before an independent judicial officer to be dealt with in accordance with the law. This procedure .is fundamental to any civilised system of justice. A different approach, it was said, was appropriate in the circumstances of mere breaches of the peace. For this purpose it was submitted that the arrests of Messrs Falconer and Cole should be viewed as occasioned by such breaches by them and not as a result of the alleged commission of substantive offences. 34. The breaches alleged were not easy to formulate but it was suggested that an activity of water throwing could incite a breach of the peace on the part of a person' wet by it. Indeed, I accept. that instances had occurred in the course of the night where irate motorists, doused by water thrown from the roadside, had left their vehicles and physically attacked the water thrower. The basis for the different approach was to be found, it was said, in a document given to the police, containing legal advice. This document was admitted into evidence. tt is entitled, "Breach of the Peace, Arrest and Release." As I have said, I do not intend to comment on the reasoning in this document. It is sufficient for present purposes that it has been accepted by the police and relied upon in practice. After some detailed discussion of legal principle, some questions of practice are dealt with in the document in a question and answer form: Question 1. If a person had been arrested for a breach of the peace, is there anything to stop the police officer releasing the person from police custody if the person gives an undertaking not to return to the location where the arrest took place? Answer 1. If the person gives an undertaking not to return to the scene, the person may and should immediately release him. ; Question 2. If this course of action was taken, how should the police officer record the event? Answer 2. The undertaking should be recorded and signed by the person in the officers notebook and 35. the facts of arrest and release recorded in the occurrence report." It has been put to me, on behalf of Sergeant Barbour, that the giving and recording of an appropriate written undertaking can be regarded as a mere formality and that it can be disregarded if circumstances render it difficult of compliance. It is submitted that it has only evidentiary significance in providing a record which can be used against the person giving the undertaking should he subsequently breach it. I reject the submission. In my view, the written undertaking, in the context of this procedure, is of far greater significance than that. The arrest and detention of a citizen by a police officer is a most serious matter, whatever its duration. It is a deprivation of the liberty which all Her Majesty's subjects enjoy. It is in every way appropriate that any such deprivation be attended by safeguards. This practice envisages that the arresting policeman can himself release the person arrested. Such a procedure is clearly open to abuse. The person arrested may wish to complain about the arrest or the detention or some features of either. He or she may wish to complain to somebody in authority independent of the arresting officer. In ordinary circumstances, a person arrested is brought before a judicial officer who traditionally and properly fulfils that role. Even in cases of breach of the peace not involving any 36. substantive offence, any binding over to keep the peace, with or without surety, should take place per medium of an independent judicial officer. This undertaking procedure does not involve the protection to the subject afforded by the intervention of a judicial officer. In the absence of such protection, it is highly desirable that the arresting constable take the person arrested before a senior police officer at a police station for the purpose of giving the undertaking to such officer and securing a release from custody, by order or direction of that officer. This would provide an opportunity for the making of any complaint to an independent authority. I consider that this procedure is, in fact, envisaged by the wording of the operation order to which I have made reference. Where, in extreme circumstances, it is not possible for the undertaking and release procedure to be conducted at a police station, then the requirement of the person giving a written undertaking to the arresting constable provides at least some safeguard. If he or she is dissatisfied as to the arrest or treatment or both, he or she can refuse to acknowledge the breach of the peace and refuse to give the undertaking. It would then be incumbent upon the police officer to process the arrest in the ordinary way with the safeguards that that procedure entails. Also, 'the written undertaking and other appropriate notation in the constable's 37. note book provides the material from which an cfficial record can be made, as envisaged, properly, by the operation order. Mere release without written undertaking is therefore, in my view, highly undesirable and both irregular and improper, What Sergeant Barbour did at Ainslie had a twofold vice. The removal of the two men from the bus in the remote places chosen effectively prevented them from being brought before a magistrate or even an officer in charge at a police station. It also, and in the circumstances, perhaps more importantly, denied to Sergeant Barbour himself, the supervisory role which he should have been able to exercise as officer in charge of the bus, regarded, as I have suggested, as a mobile police station. He could not, by the course he adopted, ascertain who the "arresting constables were, or in respect of what alleged breaches, the arrests had occurred. He was denied the opportunity of having before him both men and the arresting constables during the undertaking procedure, in circumstances where they could have made any complaint that they wished to him and he could have observed their condition. In particular, he could have observed the laceration which was visible on Mr Falconer's temple. Had this occurred, I am satisfied events would have taken a different course. Official and proper steps would have been taken to deal with the question of assault on Mr Falconer and also the arrest of 38. Mr Cole which, on the evidence before me, does not appear to have been justified. As I have said, Sergeant Barbour fully and properly concedes that in hindsight he should have acted differently. He defends his decision on the basis of the extreme exigencies of the night and the pressures upon him, occasioning a forgetting of the requirements of proper procedure at this point. I am quite prepared to and do accept this explanation. I regard the whole matter as an unfortunate and uncharacteristic lapse on his part. However, this does not mean that a breach of the regulation did not occur. I find that the particulars referred to have been established and that the breach of regulation is established. Objectively, the failures in procedure in relation to the release of the two men and indeed the choice of locations for their separate releases amounted to acting in a manner that was likely to bring discredit to the reputation of the Australian Federal Police. I should add that I regard the evidence of Superintendent Taylor, which was in very many respects favourable to Sergeant Barbour, as ultimately supporting this finding. In the result, I dismiss proceedings ABMJ001 to 3 and I find proved the breach of regulation alleged in proceedings ABMJ004. 39. As to costs, I order that the Sergeant receive the costs of the three offences in respect of which he has succeeded and that he pay the costs of the offence in respect of which there has been a finding of guilt. As far as a penalty for that offence is concerned, order that an admonishment be administered. I certify that this and the preceding thirty eight (38) pages are a true copy of the Reasons for Decision herein of his Honour Mr Justice M. LL. Foster, President of the Federal Police Disciplinary Tribunal. Associate: Menace Date: 16 SEPTEMBER 1994 APPEARANCES COUNSEL FOR THE APPLICANT: MR P. HASTINGS INSTRUCTED BY: AUSTRALIAN GOVERNMENT SOLICITOR COUNSEL FOR THE RESPONDENT: MR C. ERSKINE INSTRUCTED BY: SNEDDEN HALL & GALLOP DATES OF HEARING: 4-8 JULY; 6-9, 12-13 SEPTEMBER 1994 DATE OF JUDGMENT: 16 SEPTEMBER 1994