JUDGMENT No. P| IN THE FEDERAL POLICE ) ) No. FPDT 3 of 1996 DISCIPLINARY TRIBUNAL ) BETWEEN: COMMISSIONER OF POLICE Applicant AND: FEDERAL AGENT SIDNEY CROSS Respondent CORAM: M.L. FOSTER J (PRESIDENT) DATE: 4 DECEMBER 1996 PLACE: BRISBANE REASONS FOR DECISION (Extempore) HIS HONOUR: Federal Agent Cross has been the subject of three charges brought under the relevant Federal Police (Discipline) Regulations ("the Regulations"). The relevant regulations are set out in the charges. There is no need for me to refer to them in any detail in these reasons. The charges are three in number. In respect of the second and third charges, the particulars that are relied upon as constituting the breaches have been the subject of some amendment . In respect of the charges entitled WESC002, only the first and fourth particulars are now relied upon. In respect of the charges listed as WESC003, the first particular was abandoned at the outset of the proceedings. The second has been abandoned during the course of the proceedings. Ab coosseonecs 2. It has been correctly stated, in my opinion, that the core question for my decision in respect of all three of the alleged disciplinary offences is whether or not Federal Agent Cross was on 2 March 1995 under the influence of intoxicating liquor whilst he was performing his duties. I shall address that matter first, as, to a large extent, the decision in respect of individual charges must fall for determination in relation to the decision that I make on that core question. It is convenient if I commence my considerations by referring to some preliminary matters, before coming to events which took place outside brewery premises at Yatala on the date in question. It is established to my satisfaction that on 2 March 1995, Federal Agent Sidney Cross, who was then described as a Detective Constable in the Australian Federal Police ("Constable Cross"), was performing duties in company with Federal Agent Pattle. Mr Pattle, then described as a Detective Sergeant in the Australian Federal Police ("Sergeant Pattle"), was senior to Constable Cross on the day and was to that extent in charge of the operations in which they were jointly involved. Those operations related to a particular investigation being conducted by the police, apparently in the Gold Coast area, and given the codenaine "Spitfire". Details of it are not important for the question that I have to decide. 3. On the day in question, and from at least 9 o'clock in the morning, both men were involved in operations in the Gold Coast area relating to that investigation. I have been told, and I accept, that part of their work involved the obtaining of a suitable unit to be rented as some sort of a base to be used in those operations. It was also necessary for the men to conduct liaison activities with other members of the Australian Federal Police, particularly members of the police technical unit, who as I understand the evidence were required to assist in setting up aspects of the investigation project. This is about the extent of the evidence as to what occurred during the day. I should indicate at this point that Sergeant Pattle has not been called as a witness. He apparently resigned from the Federal Police some time last year and it is not suggested by either counsel that I should drawn any inferences from his absence from the witness box in these proceedings. Accordingly, I draw no inference adverse to Constable Cross from the fact that his supervising Sergeant has not been called, although so far as the facts of this matter are concerned the two were clearly acting together at relevant times. During the course of the day, the two men had the use of a police vehicle, described in the evidence as a green Commodore which, at all relevant times, was driven by Sergeant Pattle. It is established to my satisfaction that, when the 4. work of the day was concluded in the Gold Coast area, both men set out on the return journey to Brisbane in that vehicle. On the return journey, whilst the vehicle was proceeding along the Pacific Highway towards Brisbane, there occurred some incident involving another vehicle. This vehicle has been described in evidence as a "pilot" vehicle. It appears that it was the type of vehicle not uncommonly used as a vehicle preceding some other vehicle on the highway in circumstances where some warning was required to be given as to the following vehicle, such as its having an unusually wide load. Although reference is made in the record of conversation, which is Exhibit 9 in these proceedings, to some incident occurring at an earlier point in time on the highway involving the two vehicles, no evidence of such an incident has been given. In the absence of Sergeant Pattle, I have only the evidence of Constable Cross as to what then occurred. The green Commodore, which I shall refer to as the police vehicle, was proceeding towards Brisbane. Constable Cross became aware, because of an exclamation made by Sergeant Pattle, that some vehicle behind them was behaving in an unusual way. It appears that Constable Cross then observed a vehicle following close behind the police vehicle and flicking its headlights. That vehicle then passed the police vehicle on its inside, and cut in front of the police vehicle so that it was travelling in front of it. The police vehicle, I should add, had been 5. travelling in the right-hand lane at a speed which could perhaps be described as being somewhat less than the speed that vehicles travelling in that lane would normally have adopted. The behaviour of the vehicle, according to Constable Cross, was such as to excite the concern of both Sergeant Pattle and himself. The opinion was formed that the vehicle was being driven dangerously, and that it should be kept under observation. At the time that the vehicle passed on the inside, Constable Cross says that he was able to observe some behaviour on the part of the driver of the vehicle. That consisted of a gesture being made by that driver with his right hand. The gesture was demonstrated by Constable Cross in the witness box, and might generally be described as a derogatory or offensive gesture. It was accompanied by the mouthing of two words, which Constable Cross had no hesitation in translating as being "Copper cunt". It is not clear from the evidence whether it is claimed that Sergeant Pattle also observed this behaviour or whether he was informed of it. I should mention at this stage a difficulty, as I see it, in the acceptance in full of this aspect of the evidence of Constable Cross. It is conceded that the police vehicle had no markings upon it indicating that it was, in fact, being driven by police. Suggestions appear in other places in the evidence to the effect that there was normally, within the vehicle, a form of notice that could be held up 6. manually, indicating to those observing from outside the vehicle that it was in fact a police vehicle, but that such a notice was not being carried in the vehicle and was never used. So the situation must be, on Constable Cross' evidence, that there was no particular reason that could be advanced for the driver of the vehicle passing on the inside having knowledge of the nature of the occupants of the police vehicle, such as to provide some basis for him making the crude comment that he allegedly made. That having been said, it is clear that the police vehicle followed the pilot vehicle with a view to keeping it under observation. The intent so far as Sergeant Pattle and Constable Cross were concerned was, according to Constable Cross, to pursue the offending vehicle, if necessary all the way to its ultimate destination, which might in fact have been Brisbane or beyond. This intent was based upon a desire to confront and question the driver of the vehicle in relation to aspects of his driving considered to be a danger to road users. Indeed, Constable Cross went so far as to say that the nature of that driving could involve the killing of some other user of the road. I find this evidence difficult to accept. Sergeant Pattle not having been called, I do not have the benefit of his evidence as to his precise intentions in following this vehicle. It is not clear to me whether there was some basic purpose of effecting a citizen's arrest, having regard to the very serious transgressions involved in the driving of the pilot vehicle, or whether there was an 7. intention merely to administer some sort of reprimand. The evidence is, in my view, strangely obscure on this point. In any event, the police vehicle remained in close touch with the alleged offending vehicle until such time as that vehicle pulled off the highway and followed a course along a side road, which took it into the premises of the Carlton United Brewery at Yatala. The vehicle entered those premises. In so doing it passed down an entry road, through a boundary gate which was open, past a car park and up to a second gate which gave access to the brewery proper. This gate was guarded by a guardhouse manned by Mr Tweedie, who was an important witness in this case. I am satisfied that entry of the pilot vehicle was barred at the guardhouse. I am also satisfied that the driver of that vehicle spoke to Mr Tweedie requesting that he be allowed to enter the brewery premises because he was being followed by another vehicle. I should add that that driver has himself not been called, it having been made clear to the Tribunal that efforts to obtain him have been unsuccessful. At the time that Mr Tweedie, whose evidence on this point I accept, informed the driver of the pilot vehicle that he could not be admitted into the brewery premises, the police vehicle arrived. I am satisfied that it stopped in a position fairly closely behind the pilot vehicle. Mr Tweedie says that he then took steps, in effect, to deal with a situation which he did not want to develop. It would have been clear to him | | | | 8. that the green Commodore police vehicle was in fact the vehicle which was allegedly causing concern to the driver of the pilot vehicle. He wished to take steps to cause both vehicles to leave the brewery premises. He did so by approaching the second vehicle, requesting that it reverse and waving with his hands to indicate that that manoeuvre should be performed. I am satisfied that upon his doing so, Sergeant Pattle reversed the police vehicle and did so in a quite extraordinary way. I have come to the view that the most likely explanation of what Sergeant Pattle did was that he was taking the first steps in positioning his vehicle so that he could leave the brewery. In this regard I am satisfied, on the evidence of Mr McDonald, another witness to whom I shall refer later, that Pattle indicated to him at a somewhat later point in time that it had been a mistake on the part of the police to enter the brewery premises. I think the most likely explanation is that when the police vehicle was reversed, it was reversed with the intention of leaving the premises. However, the reversing took the vehicle over the kerb of the straight bitumen road, which led from the boundary gate to the gatehouse, over a grass verge, and in the direction of vehicles parked in the car park on the other side of that grass verge. I am satisfied on the evidence of Mr Tweedie that he saw a strong possibility of the reversing vehicles striking 9. one of the parked vehicles. He sought to induce the driver, Pattle, to stop reversing in that direction. He was unsuccessful in those attempts, and there was a collision between the police vehicle and the vehicle owned by Mr Taylor, another witness, that was parked in the car park. This was a minor collision, but in my view it certainly occurred. It left corresponding marks on the rear portions of each of the vehicles, which bore out the fact that a collision had occurred, although only of a minor nature. I do not propose to deal in detail with the evidence as to events that then occurred. The evidence called on behalf of the Commissioner is given by Mr Tweedie, to whom I have made reference, Mr McDonald, and Mr Taylor, the owner of the vehicle in the car park. I am quite satisfied that when the collision occurred, Mr Tweedie did two things which are of some significance in this case. First, he activated the main boundary gates to which I have made reference, and which were electronically controlled. The result of that was that the egress from the brewery premises area was prevented along the entry road. He also, through use of the telephone in the guardhouse, acquainted Mr Taylor with the fact that his car had been struck, and suggested that he come to the car park with a view to obtaining the necessary particulars in relation to the other vehicle and its occupants. Mr Tweedie, pursuant to what I am satisfied were his duties as the guard at the guardhouse, also regarded the matter as an incident on the premises requiring that he obtain relevant information for the 10. purpose of recording it: not only had the incident happened within his view and near the guardhouse, but it involved a vehicle owned by an employee of the brewery. Mr Tweedie has given critical evidence in relation to his conversations with, and observations of, Sergeant Pattle and Constable Cross. Mr Tweedie has been criticised by Mr Long, counsel appearing for Constable Cross. Mr Long has submitted to me that I should regard Mr Tweedie as an unreliable witness in certain important respects. I have, of course, had the opportunity of observing all the witnesses in the usual way in the giving of their evidence. I. should record that I have clearly formed the view that Mr Tweedie was an honest and reliable witness, upon whose evidence I can place considerable weight. In so saying I am not unaware of the fact that in certain respects his evidence is in some conflict with those of the other witnesses to whom I have made reference. I do not consider, however, that those matters of conflict, which I shall not pause to detail here, were such as to affect the core value of the evidence that Mr Tweedie gave. Mr Tweedie spoke in the first instance to Sergeant Pattle. He spoke to him at close range. He was able to smell alcohol on Sergeant Pattle's breath. He was able to form an opinion as to the way in which the Sergeant's speech was slurred. He expressed the view that the Sergeant should not 11. have been driving a motor vehicle, he being affected by liquor. This view of the Sergeant's condition was supported by the evidence of Mr Taylor. Mr Taylor, at a somewhat later point of time, had a conversation with the Sergeant in which he sought to obtain the Sergeant's name as a particular that ought properly and reasonably to be supplied, having regard to the collision between the vehicles. He was not successful in obtaining the Sergeant's name. He was, in fact, ultimately given the name of another police officer. I am quite satisfied on Mr Taylor's evidence that the name that was provided, that of Andre Legosz, was provided by the Sergeant not under any misapprehension as to what he was being asked, but given falsely as the Sergeant's own name. During the period when these conversations, which were conducted towards the rear of the two vehicles, were going on, Mr Taylor was able to form a view as to the sobriety of the Sergeant. He was clearly of the opinion that the Sergeant was well affected by liquor, to the extent that it was affecting his behaviour and his attitude towards Mr Taylor. He was overbearing and generally threatening. A similar view was formed by Mr McDonald, who was another employee of the brewery. Mr McDonald had had = not inconsiderable experience, in former employment as a prison officer, in evaluating the condition as to sobriety of persons whose condition was of importance to him. I am quite 12. satisfied that he was well able, through his experience, to form reliable opinions in that regard. He formed the view that Sergeant Pattle was aggressively drunk. I have mentioned this evidence in relation to Sergeant Pattle not because Sergeant Pattle is the subject of any charges which I am currently considering, but because of the bearing which it has, in my view, upon the evaluation of the credit of significant witnesses in this case. I am quite satisfied that Sergeant Pattle was affected by liquor to the state where he could properly be described as drunk, and that that was a condition which was plainly obvious. It would, and should, have been plainly obvious also to Constable Cross. I particularly asked Constable Cross his views as to the sobriety of the Sergeant, bearing in mind of course that he would have been at ail relevant stages very close to the Sergeant, who was in fact driving him in the motor vehicle. He told me that he could not detect any alcohol upon the Sergeant's breath, nor was the Sergeant exhibiting any signs of insobriety. I simply do not accept that evidence, and the fact that it was proffered to me causes me considerable concern as to whether I should accept the evidence of Constable Cross. Indeed, I have formed the view that I cannot accept it where it is in conflict with the evidence called by the witnesses for the Commissioner. 13. The evidence given by those witnesses in relation to Constable Cross' state of sobriety can be referred to in relatively short compass. Mr Tweedie, having given evidence as to his observations as to the driver, Sergeant Pattle, spoke of his observations of Constable Cross at the scene. I am quite satisfied that Constable Cross left the police vehicle at some point of time after it had reversed across the grass verge and came into collision with Mr Taylor's vehicle. On the evidence, I find it likely that Constable Cross was not outside the vehicle for any great length of time, and that he had resumed his passenger seat in the vehicle for at least a few minutes before it was ultimately driven from the scene. Mr Tweedie says that he approached Constable Cross when the Constable was standing outside the vehicle. He asked Constable Cross to provide him with his name. He did so, quite obviously, in circumstances where it was obvious to Constable Cross that Mr Tweedie was taking particulars of the vehicles that had been involved in the incident, including, of course, the police vehicle. I am satisfied that he was within, as he says, about half a metre of Constable Cross and that he could clearly and distinctly smell alcohol upon his breath. He did not receive a courteous response in reply to his request for Constable Cross's name. I am satisfied that Constable Cross told him to go away, and said that it was none of his, as he said, "fucking business". I am also satisfied 14. that those words were uttered in a slurred form of speech. Mr Tweedie had expressed the view that Sergeant Pattle should not have been driving. He was then asked his view in relation to the passenger, and he said the state of the passenger, he thought, was "a little bit worse than the driver". Later, he expressed the view, when pressed in cross-examination, that the alcoholic smell on Constable Cross' breath was a smell of beer and rum, and that there was also a smell of garlic. He also indicated that at the time that he was speaking to Constable Cross, the Constable was unsteady and swaying on his feet. Mr Taylor had no conversation and made no observation of Constable Cross. His attention, after he arrived at the scene, was directed to a consideration of the damage, if any, to his vehicle, and to the obtaining of necessary particulars from Sergeant Pattle. Mr McDonald, whom I have already referred to as a witness well able, in my opinion, to assess degrees of sobriety also concentrated to a large extent at the time, and in his evidence, upon the condition of Sergeant Pattle. However, he did make observations of Constable Cross. His observations were made at a time when Constable Cross was out of the vehicle. He had observed Constable Cross standing near the vehicle at the time when he came upon the scene. In fact, he was asked to play a part by Mr Tweedie, who quite obviously was concerned at what was a developing and unpleasant 15. situation. I should indicate, at this point, that I am satisfied that Sergeant Pattle and the driver of the pilot vehicle, Mr Jibson, had been engaged in a vituperative altercation which obviously gave Mr Tweedie some concern. Mr McDonald, as I have already indicated, had a conversation with Sergeant Pattle, some details of which I have already made reference to. During that conversation he formed the view as to the Sergeant's sobriety, to which I have already made reference. I return to his observations of Constable Cross. He said that Constable Cross was standing at the driver's side of the Commodore and did not seem to be playing an active role. I should add that some submissions have been put to me on behalf of Constable Cross as to some inconsistency between the witnesses as to where Constable Cross was standing. I do not consider those submissions, in all the circumstances, to have any weight. The area in which people were standing or moving was a very confined one, and it is quite possible, of course, that Constable Cross would have moved his position over what would have been quite a small distance. Mr McDonald did not speak to Constable Cross. He did, however, look at him, and felt that he was in a position to assess Constable Cross for any signs of intoxication. He saw that the Constable staggered and had trouble holding his balance. He formed the view that Constable Cross was fairly drunk. Later he said that the Constable was drunk but 16. passive, in comparison with the assessment of the Sergeant as being drunk and aggressive. He also said that Constable Cross appeared to need a sleep. That evidence, coupled with the evidence of Mr Tweedie, certainly presents a picture of Constable Cross being noticeably affected by alcohol whilst observed outside the vehicle. I found the evidence of Mr McDonald to be most acceptable. I regarded him as a reliable and honest witness, having no motive for misrepresenting any of the matters on which he spoke in evidence. It may well have been that when he was being interviewed by the police in relation to the matter he was more guarded in some of the things he said than he was before this Tribunal. I do not find this to present any particular problems in relation to his evidence. He gave evidence on oath before me, and I accept that evidence. The evidence given by Constable Cross consisted, for practical purposes, of denials of having consumed = any alcoholic liquor during the day. Indeed, he said that he had consumed no alcoholic liquor for a period of some two years before 2 March 1995, and that he had continued in this total abstinence for some months thereafter. I have difficulty in accepting that evidence. I was not particularly impressed with Constable Cross' demeanour in the witness box. Furthermore, although the opportunity was clearly given to him, in the record of conversation which took place between him and Detective Superintendent Milner and Detective Sergeant 17. Torr on 5 April 1995, to add any matters which he felt he should add to what had already been recorded in the interview, he, significantly in my view, made no reference to the fact that he had been, at the relevant time, a total abstainer for a period of two years. It is quite clear that the thrust of the complaint being made, and in respect of which he was being interviewed under direction, was that he had been under the influence of alcohol while on duty; I find it quite remarkable that he would have made no mention of that period of total abstinence, if indeed that had been the position. Constable Cross also puts forward, as an explanation in relation to the unsteadiness on his feet which formed an important part of the observations made at least by Mr McDonald, that he was on that occasion affected by gout. He says, as I understand his evidence, that after he got out of the car he experienced symptoms of pain. In his evidence-in- chief before me he referred to that pain as being some sort of discomfort in his foot. It became enlarged, in his evidence, to pain of an excruciating nature, equivalent to two tons of cement being landed upon his big toe. There is evidence before me that Constable Cross is a gout sufferer. A medical certificate has been placed before me. This indicates, for practical purposes, that like a number of persons who are afflicted with that particular problem, he was under medication which was keeping the gout under control. I simply am not satisfied on his evidence that the lurching, staggering, swaying or moving which was seen as_ being 18. significant by those observing him, is explicable on the basis that he had a sudden onset of gout. I should say that the evidence in relation to the arrival at and leaving of the brewery premises by the police vehicle raises a number of difficult considerations. If, as the position was asserted to be, the police vehicle was in hot pursuit of a vehicle seen as being a danger on the road, then what occurred when the vehicle was in fact run to earth at the brewery gate is hardly consistent with a desire to confront or otherwise deal with the driver of that vehicle in relation to his driving. The strong impression of the evidence is that when the police vehicle arrived, its occupants suddenly desired to leave the site as quickly as possible, no doubt seeing the situation then developing. This desire was coupled with an equally strong desire not to furnish particulars that were being sought in relation to the accident. The actual leaving of the premises too is strange in my view. The vehicle had come to the brewery gate along an ordinary access road leading off the Pacific Highway. When the vehicle left it did not take that path, but took a different path which involved it going over dirt roads and into areas which I am satisfied neither of the occupants of the vehicle were aware of. It is a strangeness which simply adds to the general strangeness and also the unacceptability, in my view, of the defence version in these proceedings. 19. I turn then to the particular charges. That in 001 is a charge of a breach of regulation i11(1) (a) of the Regulations, namely that Constable Cross, by consuming intoxicating liquor, had rendered himself unfit to perform his duties on 2 March 1995. I am satisfied that, although the main work of the day had been done, the two policemen were still relevantly on duty when in charge of the police vehicle and returning to their homes. Furthermore, in my view, it was part of the Constable's duty to provide all reasonable assistance in relation to the provision of particulars that might have any bearing upon the minor accident that had occurred. Being satisfied as I am of his response to Mr Tweedie in this regard, and of the condition that he was in when he made that response, I am satisfied that this breach is made out. The charge in WESCO02 is a charge of a breach of Regulation 18(1)(g) of the Regulations, namely that Constable Cross acted in a manner which brought, or was likely to bring, discredit to the reputation of the Australian Federal Police. As noted above, only two particulars of the charge are relied upon. In relation to the first particular, I am satisfied that Constable Cross was obviously under the influence of intoxicating liquor, and that in the circumstances this was likely to bring discredit upon the reputation of the Australian Federal Police. Therefore, a breach of paragraph 18 (1) (g) of the Australian Federal Police Discipline Regulations has been established as charged. 20. However, in my view, the second particular relied upon, namely that he failed to ensure that correct identification was given to the owner of the other vehicle, is not made out in the circumstances. He had no conversation whatever with the owner of the vehicle. I am not prepared to find that the conversation he had with Mr Tweedie is sufficient to bring him within the ambit of this particular, and I would dismiss this aspect of the charge. Charge WESCO003 relates to answers given by Constable Cross in the record of interview referred to above. I have given consideration as to whether the charge particularised in paragraph (c) is made out, namely that in his interview he falsely denied to the investigating officers that there was a collision between the police vehicle and Mr Taylor's vehicle. The evidence does not satisfy me that he was relevantly aware that a collision had occurred. I am satisfied that he was certainly aware of the possibility of such a collision. At no stage, however, in my view, was he out of the vehicle and ina position to observe the marks that clearly enough indicated that such a collision had occurred. In the circumstances I am not satisfied that that charge is made out. The remaining charge, relating to questions 80, 132 and 133 to which he responded by denying that he had consumed intoxicating liquor on the day is, on the basis of the findings I have made, made out and I find that charge proved. I certify that this and the preceding nineteen {15} pages are a true copy of the Reasons for Decision herein of his Honour Justice M. L. Foster, President of the Reaerat police Disciplinary Tribunal. VY Associate: On ey. Spy Date: 4 «cma 1996 u /