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 in the vicinity of the eye and to the right side of the head - 3 - above the ear. Whilst being struck, Sheppard's head continually struck the wall behind him. He subsequently attended Batemans Bay Hospital for treatment. He sustained a laceration over the right eye which required three stitches, a large swelling under the left eye, bruising to the nose, and soreness and swelling in the area of the right ear. Caps on two of his upper teeth were dislodged and he had minor chipping to three upper teeth and two lower teeth. None of these facts were then or are now disputed. After hearing a plea in mitigation, the Magistrate imposed a fine of $1000. His Worship expressly declined to deal with the matter without recording a conviction. The appellant appealed to the District Court of New South Wales. The appeal was heard and determined by Judge Mitchelmore on 3 November 1994. In the District Court, counsel for the appellant again urged that the court not impose a conviction. At page 5 of his reasons his Honour said: Mr Edmunds - who appeared for the appellant in the District Court - seeks the provisions of section 556A of the Crimes Act and urges the court not to impose a conviction. Mr Edmunds states that a conviction will result in dismissal. With section 556A the appellant has a fighting chance. Judge Mitchelmore was not prepared to apply the provisions of s 556A. He dismissed the appeal but in lieu of the penalty imposed by the Magistrate, he deferred passing sentence contingent upon the appellant entering into a recognisance in the sum of $750 to be of good behaviour for one year and to attend for sentencing if called upon during that period. -4- -In my opinion, the proceedings in the Local Court and in the District Court are relevant only to the extent that they provide evidence of the fact that the appellant had been charged before a court with an offence against the law of a State which charge had been proved to the satisfaction of the court. The court proceedings simply provide evidence of the disciplinary offence with which the appellant was charged under the regulations and in respect of which the Commissioner imposed the penalty of dismissal. Nothing said or done in either the Local Court or the District Court in any way affects the exercise of the Tribunal's discretion to hear and determine this appeal and no issue of fact, other than the fact of the conviction, is foreclosed by any finding expressed by either the Magistrate or the Judge. In a statement made on 9 March 1994, which was part of the agreed bundle of documents, Murray Sheppard described his attempt to separate a number of men fighting with his two friends. Towards the end of paragraph 6 and in paragraph 7 of his statement he said: 6. «oe I went over to help them by trying to pull these blokes away. I managed to get a couple off them. Two of these guys turned their attention towards me pushing me against the wall. 7. Whilst pinned against the wall another male person punched me in the face. I cant remember with which hand as I turned my head in an attempt to protect my face. I was struck by this person with a closed fist to the left-hand side of my nose. The second one was pretty well flush with my nose. The third was to my right eye. The last punch struck me on the right side of my head just above my ear. As I was being punched the back of my head was hitting hard up against the wall. I turn now to some aspects of the appellant's evidence as to the circumstances in which he committed the offence of assault occasioning actual bodily harm on 27 February 1994. ~5- In a recorded interview made under direction between the appellant and Detective Sergeant Lundy on 21 April 1994 the appellant described the incident in a series of answers to questions put to him by Detective Sergeant Lundy. The record of the interview forms part of the agreed bundle of documents in this proceeding. I intend to quote verbatim questions and answers numbered 75 to 82 and 90 to 94. Q75 Okay, and um what time did you stay at Beaches until? A Well as I said they closed at about three, turned all the lights on and we everyone was making there (sic) way out. Q76 Okay and what happened on the way out anything? A Yes um the reserve reserve grade coach Brian PARKS I spent most of the night with him talking to him, um him and myself were walking together he was on my. left and we''d just exited the club the door on on to the top flight of stairs um was quite a few people in front of us and there was a little bit of a um scuffle between some people, little way little further down the stairs. - Q77 Right. A And then I was struck from behind in the upper shoulder neck region. Q78 Hmm, mm. A And fell forward losing my balance and I stumbled forward and stepped on to the first step going down the stairs. Q79 Hmm, mm. A Then turned round to to my right and saw a male person about um five ten, with short dark hair, um he looked um looked angry, looked drunk and aggressive and had had his hands up or his fists up about chest height and I believed he was going to assault me. 80 Mmm, A And I also feared that um I may be knocked down the stairs backwards cause at that stage when I turned round I was had my back to the stairs. Q81. Mmm. A So then I moved towards him took trying to get away from the edge of the stairs, pushed him with my left hand, or put my left hand up and pushed towards him like that. O82 Mmm. A I then struck him um three times, three um quick punches with my right arm, right fist, um then he moved back I then turned -6- away, and glanced back behind me and as I glanced back I saw him go back into the club. g?0 Well this person uh if it's the same person alleges that he did nothing to provoke you at all, do you have any comment to make about that at all what I've just said? A Well ali I can tell you is what happened, I I was struck from behind and I nearly fell down the stairs. Qo And whereabouts were you struck? A The upper shoulder and neck area. Q92 And how hard was that blow? A Was hard enough to knock me forward, I stumbled forward and and um nearly fell down the stairs and that frightened me. Q93 Why did you hit this person three times? A To defend myself. Q94 So you were in fear of uh being hurt yourself? A Yes I was standing on the top stair at the edge and I I .was frightened that I'd um fall backwards down the stairs and injure myself, so I moved towards him and struck him. Throughout the series of proceedings in which he has been engaged in relation to this affair, that is, in the Local Court, the District Court, before the Commissioner and in this Tribunal, the appellant has adhered to this description of what occurred, but his account does not entirely accord with that of others who were present. In particular, his friend Brian Parkes, to whom reference is made in the answer to question 76, said in a statement made to Detective Sergeant Lundy on 28 April 1994 that the appellant had to lean over two or three other people in order to strike Sheppard. I quote verbatim questions and answers numbered 1, 6, 7, 16 and 17 from the record of Parkes' statement: Qi Brian as I've indicated, or as we've indicated to you, we are conducting a number of enquires in relation to an incident that occurred at the Beachies Night Club in Bateman's Bay on the evening of the Twenty Sixth and the Twenty Seventh of February, Nineteen Ninety Four. Do you mind if we ask you a few questions in relation to this matter? A No not at all John. My name is Brian Parks(sic) um just in regards to the matter I was with Bob the whole time we were Q6 Q7 Q16 Q17 A -7- down Bateman's Bay, we played football down there on the Saturday night. We went upstairs after the game of football and drank with the locals and then left there after consuming a fair sum of alcohol. We went across to the Catalina Club, we were there till about eleven or quarter past eleven. We were told you had to be at this Night Club if you wanted to get in before midnight so we all left there and went there. We all stayed there till closing time and on leaving the Club we were walking down the stairs um I'd seen Bob stumble and then he'd get on his feet, come back up the stairs, then leant over some blokes and I'd seen his hands swing once or twice back and at the time of that happening I decided it was time for me to leave the Club. Okay and you said as you were leaving you were actually with Bob? Yeah I was with Bob, I was on the right hand side of Bob I think, I'm pretty sure I was on the right hand side and then all of a sudden there was a crowd of people behind us and I just presumed everyone was just walking out like we were and then I'd seen Bob stumble um I didn't see him pushed or anything like that but I'm not saying that he wasn't as I say I wasn't keeping my eye that closely on him... Hmhm «+. and then he just regathered his feeting and turned around and started swinging over the top of a couple of people. Right. And you say you saw Bob stumble and he turned round and (OVERTALKING ) I see him stumble and re-gather his feet and he just started to swing over the top of a couple of people Okay so about how many people did he lean over to? Well about - at least about three people he was sort of trying to get over the top of. Craig Norman Shepherd was also a witness to the incident. He made a statement on 19 April 1994, in which he said: I saw Billy Cobals try to get through the crowd, but he was being blocked by some of the Tuggeranong guys. I then noticed Murray Sheppard trying to make his way along the wall, and I saw one of the Canberra footballers lean across about three others and punch Murray in the face. Craig Shepherd identified the appellant as the person who had struck Murray Sheppard. The statements of both Parkes and Craig Shepherd form part of the agreed bundle of documents. The appellant did not seek to have either of them made available for cross-examination, - 8B - although both were present. Indeed, the appellant's counsel actively objected to Murray Sheppard, Craig Shepherd and Parkes giving evidence at the hearing. The objection was based upon the assertion, which I fail to understand, that the judge in the District Court appeal had heard their evidence and had accepted it. Upon this concession being made, counsel for the Commissioner resiled from his original intention of calling these three witnesses, and was content to rely upon their statements in the bundle of documents. Although the appellant disputed the accuracy of the evidence contained in the statements of Parkes and Craig Shepherd I attach no weight or credit to his denial. Whatever may have been the tactical objective sought to be achieved by avoiding having the three witnesses mentioned above testify at the hearing, it certainly did not advance the appellant's case, insofar as that case was based upon a version of events different from those recorded in the statements of Parkes and Craig Shepherd. On the central question as to what occurred on 27 February 1994, I accept as factual the version given in the statements of Murray Sheppard, Craig Shepherd and Parkes. To the extent that the appellant's evidence is to the contrary, I reject it as lacking credit. I therefore reject the appellant's assertions that he was provoked and that he acted in self- defence, -9 - On the material before the Tribunal I conclude that the appellant engaged in an act of gratuitous violence of considerable proportions. Although he now concedes that he over-reacted to the situation and has expressed remorse, there can be no question of the appellant having been under threat of injury or of him being in any danger. Whatever may have caused him to stumble on the stairs, he readily regained his footing and had turned around before seeking a victim. The evidence before the Tribunal does not support a finding that the appellant was in any way provoked, or that he was acting in self-defence. In each of the proceedings so far, the appellant has raised a number of mitigating circumstances. Apart from the question of provocation, in respect of which I have reached a different conclusion from that reached by the Commissioner, the mitigating circumstances are well summarised in paragraphs 9 to 11 inclusive in the Commissioner's statement of reasons thus: 9. I accept that there are factors which mitigate, to some extent, the seriousness of Constable Lees' conduct; at the time, Constable Lees acted under a subjective, but mistaken, impression of provocation; he was heavily intoxicated at the time of the assault; the assault occurred over a short period of time; Constable Lees did not pursue a confrontation in any premeditated sense; Constable Lees has sought assistance and support concerning the stress and personality/temperament factors which appear to have contributed to the incident. 10. I also take into account that Constable Lees was, at the time of the assault, a relatively junior member of the AFP. He is clearly well regarded by work colleagues and supervisors and members of the community. It is to his credit that he pleaded guilty to the criminal charge thereby revealing a recognition of his own wrongdoing and contrition. -10- 11. %I take into account as well that Constable Lees has been under suspension, more recently without pay, and has thereby suffered substantial financial loss. The single sentence "He is clearly well regarded by work colleagues and supervisors and members of the community", expresses a conclusion which is supported by the evidence that has been presented to the Tribunal. There is some evidence that suggests that in the past the appellant has been involved in other similar but minor incidents. In each case, he appears to have been affected by alcohol, as was the case in February 1994. I do not think that the previous incidents can have any bearing on the outcome of this appeal. Some of the events occurred before the appellant joined the AFP, and one, in particular, was known to the selection panel at the time he joined the force. None of the previous incidents resulted in any conviction, nor is there any evidence of any person suffering injury. Furthermore, the appellant seems to have satisfactorily addressed whatever problem he had with alcohol, and there is no reason to think that if he continues to avoid the occasion for over-indulgence, he will repeat the type of conduct he has previously engaged in. The appellant presents as a young officer who has a previously unblemished record, and who, by all accounts, has served both the force and the community with diligence and compassion. Further, whilst, he remains alcohol free he is unlikely to re- offend. These are all matters to be weighed in the balance -~11- in assessing the appropriate penalty to be applied in respect of the disciplinary offence of which he is guilty. In determining what penalty should be imposed it is appropriate to consider the available alternatives. In the circumstances of this case they are either to admonish, to caution, to reprimand or to dismiss the appellant. (See reg 22(1) and (2)). The penalty of reduction to a lower rank cannot apply to an officer of the rank of constable. There are a number of judicial authorities which provide some guidance as to the appropriate principles that should be applied. In Hardcastle v Commissioner of the AFP 53 ALR 593, the Full Court of the Federal Court said at 597: The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish. This statement of principle has been referred to and followed in many subsequent cases. In Police Service Board v. Morris 156 CLR 397, the High Court of Australia had occasion to consider the disciplinary regime of the Victorian Police Force. At 412 Brennan J, said: The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers, Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardize public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. - 12- Although these comments were made in a different legislative and factual context, they are nevertheless equally applicable to the present circumstances. In both passages to which reference has been =made, the public interest in the maintenance of a proper standard of conduct within the police service is emphasised. That the public interest is superior to the personal interest of the individual officer was highlighted by Fox J, in R v Minister for the Interior 20 FLR 449, where he said at 461-2: There is no true dichotomy between punishment and discipline. On the contrary, the two generally go hand in hand. The distinction which is sought to be made when the two terms are opposed is generally that which has recently been stated by Sir Douglas Menzies, speaking for the Privy Council in Kariapper v Wijesinha (1968) AC 717 namely that between that which is "personal and retributive" and that which is "corporate and self-respecting". Their Lordships said: "Speaking generally, however, their Lordships would observe that it is not readily to be assumed that disciplinary action, however much it may hurt the individual concerned, is personal and retributive rather than corporate and self-respecting". It has long been recognized, for example, that the power of a court to disbar or suspend a practitioner is of a disciplinary nature given for the purpose of protecting the public, and the reputation of the profession, and does not involve punishment in the ordinary sense, although, in another sense, the practitioner may be gravely punished. In Commissioner of Police v Gordon (1981) 1 NSWLR 675, at 688, the former President of the New South Wales Court of Appeal, Moffitt P, expressed the view: The conviction of a member of the force is, prima facie, inconsistent with the performance of his office relating to the enforcement of the law. This statement has been cited with approval on a number of occasions and I refer, in particular, to the reasons of the former President of the Tribunal, Kelly J, in Mitchell v The Commissioner, FPDT 7 of 1986 and Craven v The Commissioner, FPDT 4 of 1986. I am of the same opinion. However, that does not absolve the Tribunal from considering each case on -~ 13- its merits and exercising its discretion accordingly. The matter for the Tribunal's determination is therefore whether the prima facie conclusion referred to above is, in the facts of this case, to be displaced by the weight of the facts favourable to the appellant. In my opinion, the balance falls decisively in favour of dismissal. The appellant was convicted of a very serious offence; he caused substantial injury to the victim of the assault; his conduct was unprovoked and not justified as self defence. By his conduct he has compromised his own standing as a member of the AFP, a force dedicated to the upholding of the law. His credit as a witness in future proceedings will be vulnerable to attack. The standing and reputation of the AFP has, by his conduct, been placed in jeopardy. The public has a vital interest in maintaining the integrity of the AFP and to impose any one of the other available penalties and thus allow the appellant to continue to serve in the office of constable would tend to undermine the basis of trust and confidence in the AFP which is essential for the public welfare. Just as a bank clerk who is convicted of stealing a large sum of money from his employer could expect instant dismissal, so an officer sworn to uphold the law who commits a serious offence against the law cannot reasonably expect to maintain his position, notwithstanding his previous good conduct and his dedication to the general well-being of the community in which he has served. - 14- I wish to make two further observations. First, it is well established that in a matter of this nature, the Tribunal is entitled to have regard to the views taken by the Commissioner as to penalty. In this case I have reached my own conclusion based upon the material put before the Tribunal. I note, however, that on essentially the same material, the Commissioner reached the same ultimate conclusion for basically the same reasons. The second matter for comment is that I have not found it necessary to refer in these reasons to the decision of the Federal Court in the Commissioner v Rosevere, 31 FCR 166, about which considerable debate took place at the hearing. I do not think anything said or decided in Rosevere is relevant to the present appeal except to confirm that in hearing an appeal from the Commissioner in relation to penalty, the Tribunal is entitled, and indeed obliged, to consider the case on the merits of the material put to it and to exercise its own discretion based upon that material. This I have done. The decision of the Tribunal is that the appeal is dismissed. I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney Associate: (Quote TrewcoSth lL Dated: 5 December 1995 - 15 ~ Heard: 4 December 1995 Place: Canberra Decision: 5 December 1995 Appearances: Mr C. Erskine (instructed by Porter Pilkinton & Bradfield) appeared for the appellant. Mr T. Howe (instructed by Australian Government Solicitor) appeared for the respondent.