Lees v Commissioner of Police [1995] AFPDT 1

FEDERAL POLICE DISCIPLINARY TRIBUNAL

FPDT 1 of 1995 BETWEEN

CONSTABLE ROBERT LEES

Appellant ~and-

ISSIONER OF POLICE

Respondent

Before the Deputy President Justice Olney Place: Canberra

Date: 5 December 1995

REASONS FOR DECISION

This is an appeal to s 69(1) of the Complaints (Australian

Federal Police) Act 1981 (the Complaints Act).

On 3 January 1995 the Commissioner of the Australian Federal Police (the Commissioner) imposed a penalty on the appellant, a constable in the Australian Federal Police (the AFP), in respect of a breach of discipline otherwise than in pursuance to s 67(6) of the Complaints Act. The penalty imposed was that the appellant be dismissed from the AFP. The appellant originally appealed on a number of grounds but the only ground

pressed at the hearing was that referred to in s 69(3)(b)

namely, that the penalty is unduly severe.

The appeal was heard on 4 December. The matter was dealt with as a hearing de novo. The bulk of the evidence for the Commissioner was comprised in an agreed bundle of documents which, by consent, was tendered in evidence without formal

proof. The Commissioner's statement of reasons given

FeV GS

SCO

Ss

-~-2- pursuant to s 69(1) of the Complaints Act was also tendered without objection. The appellant gave oral evidence, as did a number of witnesses called on his behalf. Each witness was subjected to cross-examination by counsel appearing for the

Commissioner.

The disciplinary offence of which the appellant was found guilty by the Commissioner is the offence referred to in regulation 18(1)(h) of the Australian Federal Police Discipline Regulations (the regulations) namely, that the appellant had been charged before a court with an offence against a law of a State, which charge had been proved to the

satisfaction of the court.

The short facts in relation to the disciplinary offence are these: On 18 July 1994, the appellant pleaded guilty in the Local Court at Batemans Bay to a charge of assault occasioning actual bodily harm, an offence created by s 59 of the Crimes Act (NSW). The facts presented to the Local Court by the prosecutor indicated that on the morning of Sunday 27 February 1994 as patrons of Beachie's Nightclub at Batehaven were leaving the premises, the victim of the assault, one Murray William Sheppard saw that two of his friends had become involved in an altercation. He attempted to separate those concerned but was pushed against a wall. Whilst he was pinned against the wall the appellant punched him on the left side of the face, on the nose, to the right side of the face