IN THE FEDERAL POLICE ) FPDT 2 of 1996. DISCIPLINARY TRIBUNAL __) & TRIBUNAL DATE PLACE COMMISSIONER OF POLICE V. CONSTABLE PETER ROSS HILL. SPECIAL MAGISTRATE J3.3.DAINER, AM, RFD, MEMBER. 15th JANUARY 1997. CANBERRA, ACT. FINDINGS. On Charge AFP:WEPHOO2, alleging that Constable Peter Ross Hill committed the offence of disgraceful conduct, contrary to Regulation 18 (1)(d) of the Australian Federal Police (Discipline) Regulations, the Tribunal finds him NOT GUILTY. On Charge AFP:WEPHOO3, alleging that Constable Peter Ross Hill committed the offence of knowingly making false and misleading statements, contrary to Regulation 18(1)(€a) of the Australian Federal Police (Discipline) Regulations, the Tribunal finds him NOT GUILTY. On Charge AFP:WEPHOO4, alleging that Constable Peter Ross Hill committed the offence of knowingly making false and misleading statements, contrary to Regulation 18(1)(d) of the Australian Federal Police (Discipline) Regulations, the Tribunal finds him NOT GUILTY. J.3"DAINER, MEMBER. IN THE FEDERAL POLICE )} FPDT 2 of 1996 DISCIPLINARY TRIBUNAL _) COMMISSIONER OF POLICE Vv. CONSTABLE PETER ROSS HILL TRIBUNAL :SPECIAL MAGISTRATE J.J3.O0AINER, AM,RFD, MEMBER. DATE :15th JANUARY 1997. PLACE : CANBERRA, A.C.T. REASONS FOR DECISION Constable Peter Ross Hill (the defendant) was charged with three offences. The first, of disgraceful conduct, alleged that he inserted a metal blade into a can of capsicum spray in order to fabricate evidence in support of a report made by him regarding an incident involving the can that the can was accidentally punctured; it further alleged that he attempted, by doing so, to disguise the fact that Constable P.J.Grace had discharged the contents of the can from a vehicle in which both persons were occupants towards a rental bus on Parramatta Road, near Concord, on 24th February 1995. The second charge alleged that, on 20th April 1995, when he was being interviewed by Detective Sergeant Cottam regarding the incident on 24th February 1995, he made various false and misleading statements in providing an explanation in general terms about the leak in the can and the reason for discharging its contents. The third charge related to a further interview with Detective Sergeant Cottam on 12th October 1995 in which he allegedly made false or misleading statements regarding tests which he said he carried out in order to identify which of the instruments in a weapons bag had caused the puncture in the can. The matter came on for hearing before the Federal Police Disciplinary Tribunal on 16th, 17th, 18th and 19th December 1996. The Commissioner was represented by Mr P. Hastings Qc, and Mr I. Nash of Counsei. The defendant was represented by Mr 1. Bradfield, Solicitor. Because most of the witnesses were members of the Australian Federal Police stationed in Sydney, the hearing was, by arrangement with the parties, held in that City. To simplify terms used in these Reasons for Decision, the case presented by Mr Hastings will be referred to the "the prosecution case", and that by Mr Bradfield as "the defence case". As some of the statements made by members of the Australian Federal Police (AFP) regarding the matter described them as either Federal Agents or Constables, f will use the term employed by them in their evidence, or in the statements tendered as exhibits. I should add that Constable Grace resigned from the AFP before the hearing. He will be referred to as Mr. Grace. The charges arose out of an incident following the completion of a segment of an Investigators' Course involving training in defensive skills. Mr. Grace and the defendant were senior instructors on the exercise, which was held at Defence Department premises at Silverwater, in Sydney's west. The course members were trained in making forced entry to premises, use of self-defence methods, problems likely to be encountered executing search warrants, and the like. The evidence may be conveniently examined under three headings 1. The incident on Parramatta Road, near Concord, when a car driven by the defendant and a bus containing the trainees from the course came alongside, and the can was discharged, together with the immediate aftermath at Eastern Region Headquarters, Sydney, on 24th Febru- ary 1995. 2. The events which occurred when the defendant returned to Canberra. 3. The expert forensic evidence adduced covering inves- tigations into how the can may have been discharged, i.e., was it likely to have been done deliberately, or following an accidental puncturing. THE INCIDENT ON PARRAMATTA ROAD. After the exercise concluded, the instructors were returning to Eastern Region Headquarters in Sydney in a Commodore sedan, and the eighteen students were in a rental bus being driven by an additional instructor, Constable D.Hodder. At about 3.50 p.m., when both vehicles were travelling side by side in Parramatta Road, near Concord, they were noticed by Mrs J.M.Dyer, who was travelling in the lane closest to the median strip about a car's length behind the Commodore, which was in the same lane. Mrs Dyer was driving a Tarago wagon, in which her three children, then aged 13, 11 and Q, were passengers. It was a hot day, and the air vents of the Tarago were directed towards the occupants' faces. Mrs Dyer noticed that the bus containing the students was in the centre lane, and alongside the sedan. She did not know that there was any connection between the occupants of the two vehicles. She noted that the passengers in the bus appeared to be young, "Tate teens or early twenties". She said all the bus windows were open, and the passengers seemed to be moving around the bus. She described them as "lively". There seemed to be some sort of interplay going on between the two vehicles, during which Mrs Dyer said she saw someone in the bus make a "rude finger gesture" at the occupants of the car. She had the impression that the bus passengers were "annoying" them. She thought it was the "sort of nuisance you have in traffic sometimes that you just have to live with". Following this, Mrs Dyer said she saw the passenger in the sedan suddeniy turn around and rummage in the back seat,then he "threw himself back around again and he put himself outside the car or leant right out the window, and he had something in his hand", He then reached out towards the bus and started spraying at it with whatever he had in his hand, which had come up level with the bus driver's window, which shut as this occurred. Then the sedan slowed down, moved to the left so that the passenger's hand was about a foot from the bus, and he sprayed along the other windows, as if he kept his finger on the spray. She was not sure if the spray came out either in bursts or continuously. The other windows were then shut successively. Mrs Dyer said she saw mist coming out of whatever was being sprayed, and then she felt her eyes burning. She could not breathe, and her throat was burning. She was trying to keep her eyes open because of the traffic, which was heavy. Her children started crying. Because the fan in the vents was operating, the mist was sucked straight back at the van's occupants. She was particularty concerned about her then 9 year old daughter, who had cystic fibrosis and was on medication because of breathing difficulties. She said she was extremely angry about what had happened, and when the traffic stopped shortly afterwards, she started to get out of her vehicle to remonstrate with those in front, but the traffic started up again. Mrs Dyer said that, after the spraying incident, the sedan "cut straight across all the Janes....... and disappeared". The bus continued on. Mrs Dyer noted the number of the sedan, a blue Commodore, as ZZB992, and her son wrote it down. On the following Monday, three day later, she telephoned the Department of Administrative Services to complain about the actions of the occupants of the Commodore. She spoke to Mr G. Mounsey, an officer of that Department. She denied, in cross-examination, that she had told Mr Mounsey that the Commodore was being driven dangerously, but agreed that she said that what had occurred had "nearty killed us". She agreed that she was distressed and angry at the time of that conversation. Mrs Dyer agreed with Mr Bradfield that her evidence regarding the people in the bus "annoying" the people in the car was an assumption, based on what she perceived to be interptay between the two vehicles, together with what she described as a rude finger gesture from the bus directed towards the sedan. It is obvious from Mrs Dyer'ts evidence that she firmly believed that the spraying of the can at the bus was deliberate. The first task of the Tribunal then is to determine whether the evidence supports that belief. The defendant, Mr Grace, and Constable Hodder, made it clear in their statements to the investigators of Mrs Dyer's complaint, and in their evidence before the Tribunal, that, white they agreed that a can of capsicum gas had been discharged by Grace, they rejected the suggestion that what had occurred was deliberate, or that the can had been sprayed towards the bus. Mr Grace said there had been no annoying interplay between the people on the bus and those in the car. He said that, while the two vehicles were alongside each other, travelling at about 60 kph, both he and the defendant detected a smell of capsicum gas, with which they were both familiar. He said he quickly got out of his seat and turned around towards the back compartment of the car, as he knew there was a can of capiscum spray in the weapons bag in the back. He first had to move a number of ballistic vests which were on top of the bag, and then weapons and other items in the bag, trying to find the can. When he saw it "down towards the bottom of the bag", it seemed to him that a shiv, or half-scissors blade, was stuck in the side of the can. The shiv was one of many sharp objects kept in the bag for demonstration purposes. He assumed that this object had punctured the can. He removed both objects from the bag, separating the shiv from the can as he did so. He said he could not see clearly during this time; his eyes were beginning to water and starting to burn, and he had a slight cough and wheeze. Mr Grace said his only purpose was to get the can out of the car, as he knew the debilitating effect it could have, particularly on the driver, the defendant, who was known to be extremely susceptible to capsicum spray. He said he leaned "outstretched completely out of the window" of the car and discharged the can between the car and the bus. He did not direct the spray at the bus. He said the spray dissipated to the rear, and downwards, between the two vehicles. The whole process took only a few seconds. Mr Grace denied that the spray from the can was directed towards the bus. He thought the windows of the bus were about a foot above his head when the spraying occurred. Mr Grace conceded that, when subsequently interviewed, he said he believed the shiv had been todged in the can when he found it in the bag. However, he could not then see clearly; his eyes were starting to burn and beginning to water. His sole concern was to get the can out of the car as quickly as_ possible. He explained this to the investigators. When bringing the can back into the car, he noticed a "pin prick" size hole towards the bottom of the can. He did not later conduct any tests on the can to determine what may have punctured it. Mr Grace denied, in cross-examination, that there had been any "banter" exchanged between the occupants of the bus and the car, or that he had deliberately directed the spray at the bus "by way of a prank". He also denied trying to cover up those actions by telling falsehoods to the investigators or the Tribunal. He agreed that deliberately spraying capsicum gas in the manner alleged by Mrs Dyer would be irresponsible and dangerous, but insisted in his evidence that that did not occur. Mr Grace said that at the time of the incident, he was the Senior instructor for Special Operations and firearms training. He had been with the training unit for about three years. He had conducted or undergone many courses in the relevant skills, involving bodies other than the AFP, such as interstate Police Forces and Corrective Services. A Jist of the courses, and details of Mr Grace's qualifications was tendered as exhibit 36. At the time of the incident, his unit had been trialling capsicum gas for the AFP. He was well aware of the adverse effects of capsicum gas on people. The defendant's evidence was that, while driving the car which was then alongside the bus, he detected an odour which he recognised as capsicum spray. He said something was said about the smell, whereupon Mr Grace turned and leaned over into the back seat, rummaged among the gear in the back, then turned back and reached out of the window. He then saw Mr Grace "discharging the contents of OC spray" He said he tlooked into his rear vision mirror and side mirrors and saw that there was a "cloud of orange mist which drifted back behind my vehicle and then just dispersed into the atmosphere". The defendant said Mr Grace "reached out of the window as far as he could with his left arm" as he discharged the can. The gas took about 5 seconds, "perhaps more" to discharge. The defendant said he had not noticed any interplay between the occupants of the bus and Mr Grace, nor had he been involved in such interplay. He said it was a regular occurrence for the instructors' car and the trainees' bus to travel alongside each other during the trips to and from Silverwater and Headquarters in Sydney. This was partly for security reasons, as there was a quantity of weapons and defensive gear carried. It was also because the gear had to be toaded and unioaded, and assistance was needed, so that courses would not be delayed. Over the five courses he and Mr Grace had conducted during this period, there were twenty trips undertaken, and the vehicles were often in close proximity with each other. The defendant said that, after the spraying incident, he accelerated into the lane in which the bus was travelling, and then into the kerb lane, trying to find somewhere to stop so that they could find out what had happened. He was unable to do so because of traffic congestion, and, as the incident appeared to be resolved, continued on to Sydney. This description of the car's movements did not differ from Mrs Dyer's, who said the car "cut across all the Janes". The defendant agreed, in cross examination, that it would be a dangerous and irresponsible act deliberately to spray capsicum gas in the manner alleged by Mrs Dyer, but denied that this had occurred. He said that it would, in any event, be impossible to spray one vehicle from another when both were travelling at up to 60 kph; the spray would immediately dissipate to the rear, which is what occurred. The defendant said he had worked with defensive sprays for up to 18 years, both in Corrective Services and in the AFP. He said he had an "overly severe reaction" to capsicum gas. He was, at the time of the incident, Senior Defensive Tactics Instructor for the AFP. He possessed a wide range of qualifications in the field, and had extensive experience in conducting courses, both in the AFP and for other bodies. A folder containing documents setting out his background in these areas was tendered as exhibit 34. None of this part of his evidence was challenged by the prosecution. Constable Hodder, who had been an additional instructor on the course, was driving the bus. He said the bus and the sedan with the instructors came alongside from time to time during this trip, as they had done on many other trips. This was so because it was necessary for them to arrive at their destinations at about the same time, so that equipment could be unloaded and exercises started without undue delay. On the relevant occasion, he noticed that Mr Grace appeared to be "relaxed, engaged in conversation and laughing". He did not observe any gestures directed towards the sedan from the occupants of the bus. He said that he noted that Mr Grace's "mood seemed to change. He spun around.... turned to his right, over his right hand shoulder, and into the rear passenger compartment of the vehicle". He said the movement was very quick. Constable Hodder said that Mr Grace "then spun around. His arm came out of the window and appeared to be holding a can". This occurred within seconds. He said Mr Grace's arm was extended fully out of his window. He had his hand wrapped around a can. There was a "mist, orangy red, coming back from the area of the can and his fingers". He said the spray, which lasted a few seconds, moved towards the rear of the car. The sedan then accelerated into the lane in front of the bus, and then moved across into the left lane, where he lost sight of it. Constable Hodder said that it was apparent that Mr Grace's sole intention was to get the spray can out of his vehicle. He said there was no deliberate action to spray the bus. He agreed with Mr Hastings that, if he had perceived that Mr Grace had deliberately sprayed at the bus, he (Constable Hodder) would have been "fairly upset" about it, and would have raised his concerns with Grace. He would also have considered making a complaint. He was aware, he said, of the adverse effects of capsicum spray. Before the incident with the can, Constable Hodder said he did not notice any interplay between the occupants of the bus and the sedan, or see his passengers moving about the bus. In particular, he did not see any gestures made by his passengers. He agreed that, as a "precautionary thing", he had asked the people around him to close their windows at the time he observed the spraying. He did not make a general announcement to the passengers to that effect. He said he was not concerned about the spray reaching the bus, because that could not, and did not, happen. He said Mr Grace's arm would have been three to five feet away from the bus at the time of the spraying. Constable Hodder said that Mr Grace moved the spray can towards the rear of his vehicle. In any event, he said, with both vehicles travelling at between 50 and 60 kph, the wind effect was such that the spray would travel "in a direct Vine straight towards the rear of the vehicle", and that is what it did. When the two vehicles reached Headquarters, Constabte Hodder said he discussed the incident with both Mr Grace and the defendant. He said to the former "What happened = on Parramatta Road? What happened with the can?" Grace told him that the can had punctured in the car. The defendant made a comment about the effect capsicum spray had on him. Nothing was said about what punctured the can, and he did not pursue the matter because he knew that both the other Constables were instructors and competent at what they did. In any event, he said, it was the end of a long training session: there were things to do, equipment to be packed and unpacked. He was anxious to return home, and knew he could follow the matter up later if he wished. Constable Hodder said he had not heard of a can puncturing before. He had heard of one subsequently, in a safe in Canberra. In answer to Mr Hastings, Constable Hodder said he had known the defendant for about 12 months, and Mr Grace for about two years. He denied he would lie to assist them. Of the sixteen passengers still on the bus at the time of the incident (two, Constables McQuillan and Smith, had departed before then), only five were called by the prosecution to give evidence. The remainder, who had been interviewed during the subsequent investigation, were not called. The records of the relevant interviews were, by consent, tendered as exhibits. The statements contained in those records accordingly stand unchallenged. Only two passengers Saw any spray coming from the sedan. Federal Agent McLean, who gave evidence, said that, when the sedan's front passenger door was about level with the front of the bus, he saw the passenger "put his arm out of the window and spray something from an aerosol can", and that he was "spraying something back towards the bus". This occurred for two or three seconds. He agreed that he had said, in his record of conversation with Detective Sergeant Jones, that the spraying had been "more in the direction of out of the window. I wouldn't say it was in any particular direction, the spraying. He was just spraying it out the window". He told Mr Bradfield, in cross examination, that that statement was correct. Federal Agent McLean said that he was sitting two seats behind the driver, at the window. He heard someone call out to close the windows, so he closed his. He added "J think it was also mentioned that they were spraying something. So I knew it had to do with the instructors in the Commodore". When asked how far the passenger's hand holding the can was from the bus, he said the car was "...mostly in front of the bus...so I would say maybe anywhere from 5 to 10 metres approximately". Constable Clucas, who was sitting on the 3rd seat behind the driver at the window, said in his record of interview that he saw the instructors' car pass the bus, and there was some waving, "just friendly waves" between the vehicles. Then he saw the passenger in the car, who had been waving at them, reach around into the back of the car, and then he remembered "seeing gas coming out of the driver's side window of the car". He said that, at that stage, the car was about a car's length in front of the bus. He did not see anyone holding a can. All he saw was a "cloud of spray", which came back past the car and the bus and seemed to dissipate. He said, later on in the interview, that the spray came out of the passenger's side window of the car. He did not hear anyone call out to close the windows on the bus, and he did not close his. As stated earlier, Constable Clucas' statements were not challenged by the prosecution. Leaving aside for a moment the evidence of Mr Grace and the defendant, it is clear that the evidence of Constable Hodder and Federal Agent McLean, and the unchallenged statement of Constable Clucas is in conflict with the evidence of Mrs Dyer as to the manner in which the spray can was discharged, particularly as to the impression she gathered that the spraying was deliberate. In his closing submissions, to which I will refer in detail later, Mr Hastings said the proof of the "primary facts" about the manner of the spraying essentially came from Mrs Dyer's evidence. That is so, as far as the prosecution case is concerned. I accept. the submission that Mrs Dyer's credit was not challenged in any significant way. She gave her evidence in acalm, credible, and dispassionate manner. In my view, she was a truthful witness. I will return to an evaluation of the weight to be given to Mrs Dyer''s evidence later. There were a number of matters which she said she observed which lead her to believe, in Mr Hastings' submission, that there was some form of hostility between the occupants of the bus and those in the car. This had appeared to aggravate Mr Grace, who had retaliated by deliberately spraying the gas at the bus. One matter was the general impression of activity within the bus, with people moving around and gesturing towards the car, including a "rude gesture". Another was her observation that the car moved closer to the bus just before the spraying commenced. There is some support for Mrs Dyer's evidence regarding movement within the bus, and to general interplay between the occupants of the two vehicles, including a "rude gesture" being observed by Federal Agent Rahdon at some stage. However, the distance between the vehicles at the time of the spraying, as estimated by others, varied from between five to seven feet (Hodder), to between five and ten metres (McLean). In addition, both the defendant and Mr Grace denied in their evidence that the car had moved closer to the bus before the spraying. There was no. other evidence, apart from Mrs Dyer's, to support that assertion. The evidence of Federal Agents Crossling and Rahdon, for example, was that there was a level of "commotion" within the bus, with passengers moving about from one side to the other. Federal Agent Collingwood described the mood of the passengers as like being on a "party bus". Constable Deacon, in his record of interview, said it was like a "football team going home after a game". Significantly, none of the witnesses who gave evidence, and none of those whose records of interview were tendered, said that the atmosphere on board the bus was anything other than jovial, or that the waving and gesturing between the two vehicles, was anything other than friendly and cordial. For example, it was not suggested by Federal Agent Rahdon, the only passenger to describe any of the gestures by an unidentified passenger as "rude", that there was" any animosity or bad feeling between the occupants of the bus and the instructors in the car. On the contrary, her impression was that the tenor of the exchanges was "friendly and play". Mr Hastings submitted that Mr Grace had been aggravated by what was emanating from the bus and had "as a form of retaliation, although in jest and as part of the general convivial atmosphere, (endeavoured) to frighten them or tease them or annoy them or in some (way) relatiate by spraying the gas in the direction of the bus". As to whether relations between the instructors and students during the course, and, in particular, during their return to Headquarters, had descended to a tTlevel which would provoke such a response does not seem to be supported on the evidence. Apart from there being no evidence of ill-feeling between the two groups during the trip, none of the students involved in this investigation had any criticism of Mr Grace or the defendant as to their personal or professional relationships with them during the course. For example, Federal Agent Mctean said in his evidence that he had the utmost respect for the instructors, whom he regarded as "highly trained specialists". He felt that while they were not "the best of mates" on a personal tevet, they got along well] with the course members, and were "highly professional". Federal Agent Rahdon described the relationship between the instructors and course members as "very cordial...an atmosphere of friendliness and interest..,it was not an aloof relationship". Federal Agent Crossling said relations between the instructors and the course members had been "relaxed and friendly" during the course. Mr Grace and the defendant agreed that relations between them and the course members had been good. Mr Grace denied that what had occurred with the spray can had been the result of, or reaction to, actions or words by anyone one on the bus. What had occurred with the spray can was the result of its being punctured in the weapons bag. Both Mr Grace and the defendant agreed with Constable Hodder's evidence as to what had occurred on their return to Sydney Headquarters. They said the matter had been discussed briefly with him. He did not ask to see the can or to look at Mr Grace's hands. Before moving to the evidence regarding events in Canberra, I should mention that most of the passengers on the bus said they saw surprisingly little of what occurred at the relevant time. Some said they saw nothing. Expressions such as "half asleep", "pretty fatigued", amd "everyone was tired" were used to describe their state of awareness. Only Federal Agents Crossting, McLean and Collingwood heard Federal Agent Alston call out to close the windows. Alston was not able to explain in his evidence why he made such a call; in any event, there seems to have been tTlittle reaction to it. Only Federal Agents Crossling and Rahdon, and Constabte Vintner saw Mr Grace either with his arm or with the upper part of his body out of his window. As to the general level of interest in, and observations of, the instructors' sedan by most of the occupants of the bus, the vehicle was described variously, in addition to its correct colour of blue, as red, silver, grey, white, and light-coloured. Mr Hastings' suggested explanation. for the failure on the part of most of the bus passengers to profess any real knowledge of the events which occurred was that there had been a "closing of the ranks". In his submission, those who claimed not to have observed the events as described by Mrs Dyer were "endeavouring to make their contribution to disguising the facts than genuinety giving their account of what happened or did not happen." However, there was no allegation put to the eleven passengers whose records of interview were tendered, by consent, that they had, as euphemistically suggested, lied to or misled the investigators. They were therefore denied the opportunity of responding to what amounts to one of the most serious allegations which can be Ytevelled against a Police officer, i.e., that he or she is a liar. The force of the allegation is therefore demonstrably weakened. EVENTS OCCURRING AT CANBERRA. I turn now to the events which atlegedly occurred after the defendant and Mr Grace returned to Canberra. Federal Agent Fitler gave evidence that he was, at the relevant time, an instructor in the Defensive Skills, Education and Training Unit in Canberra. About a fortnight after the defendant returned to the Unit, an incident occurred there involving a large can of capsicum spray, which was stored in a safe in the office of the Unit's Supervisor, Federal Agent McDevitt (then a Detective Sergeant). Fitler heard a "popping, and then a hissing noise" coming from the safe. The smell of capsicum gas was noted. Constable Pennell put a gas mask on and retrieved the can from the safe. Fitler and Constable Forbes, who was also present, knew that the gas mask lacked filters, but did not tell Pennell. They thought he would "get a good dose of the gas when he ran in there", and when he tater said that the gas mask really did not work, they told him about the filters, treating the incident as a "bit of a joke". As to the can, Fitler said that there was a stream of vapour coming from it. He did not want to get near it, and stayed four or five metres away. The defendant later said he was also present. What occurred regarding the gas mask is related here, because of a submission made by Mr Hastings in his closing address. Fitler said he discussed the incident regarding this leaking canister with the defendant. He said the defendant informed him about "the one in Sydney that had gone off", and showed him a capsicum spray can (which later became exhibit 4). Fitler said he noted that there was a puncture mark in the can, about a millimetre square. He believed the can had been carried in the weapons bag, in which a number of sharp objects were normally stored. He said he and the defendant were concerned about the carriage of capsicum spray cans in the bag, because of what had occurred in Sydney. They decided to try and find out how vulnerable the cans were to puncturing, and to investigate what object or objects may have punctured the can. They sat down "over a couple of cups of coffee" to test the objects against the can. He said they would "rat through the bag, pull out something and have a poke and then the next person would pull something out: and find something and have a poke with itn, He said "We were prodding away and seeing what could have punctured the cylinder and seeing how thick it was". When shown a shiv by Mr Hastings (which became exhibit 5), Fitler said it was one which had been in the weapons bag. He said the shiv was among the sharp objects, such as star knives, which they used to test the hole in the can. He said the point of the shiv fitted into the hole but "no more than a couple of mil, if that, of the blade". He added that the walls of the can were "even thinner that a soft drink can". They were trying to "work out if like the stuff in the bag was just by mere compression against it, or from a jolt ltike being dropped in the vehicle and something hitting it. So sometimes we'd stick the stuff in Tike gently and other times we would give it a little bit more of a push and Tike, go for like the rough version and like the compressed, soft version", Fitler said the hole became larger as they "mucked around with it". He agreed with Mr Hastings that the hole appearing in exhibit 4 was much larger than it had initially appeared, "about 5-6 mils long and 1 mil wide". He said this was the result of putting objects in it with a "bit of a wiggle around", and that both he and the defendant were carrying out these tests. He said sometimes they would push an object in as far it would go. On one occasion he saw the defendant push the shiv "right through to the other side" of the can, adding that it did not "require much force, because, as I said, the actual tin is not that hard. It's not a strong metal". Fitler said that, at the time of the tests, he was unaware of any investigation being commenced into any incident involving the spray can, exhibit 4. He said that, in the normal course, the can would have been thrown out. He did not have any concern about damaging the can because of what he believed would happen to it eventually. In cross-examination, Fitler said that the defendant had told him that in the incident in Sydney "one of the cylinders had gone off in the bag while they were driving down one of the streets in Sydney and nearly gassed himself and Constable Grace in the car and they had to hold it out of the car so they didn't gas themselves and have a prang". It was not alleged by the prosecution that Fitter was not telling the truth as to the events he described. The defendant was not asked any questions in the Record of Interview conducted on 20th April 1995 by Detective Sergeant Cottam regarding the tests carried out on the can, but, during the Record of Interview of 12th October 1995, the matter was raised. He then gave answers corresponding in general terms with the description of the tests said to have been carried out in conjunction with Federal Agent Fitler, agreeing that he had inserted the shiv in the hole, enlarging it substantially. He denied he did this with an intention of fabricating evidence to support his earlier assertions, and those of Mr Grace, that the can had been discharged following its puncturing. He believed others were present at the time. He did not refer to the matter before because he had not been asked about it by Detective Sergeant Cottam. Federal Agent McDevitt gave evidence that, in February 1995, he was a Detective Sergeant, and Officer in Charge of the Defensive Skills Training Section in Canberra. He had been absent when the defendant and Mr Grace returned from Sydney, and did not resume duty in his Section until about 6th March 1995. He said, on his return, Mr Grace showed him a can, which he believed to be exhibit 4. He noted a puncture in it, but could not remember its size. He said he could not believe "how thin the walls of the can were and how easy it was to puncture it". At that time, he was unaware of any complaint having been made regarding an incident involving the can. He regarded the can as "rubbish" He said he was aiso told of the leak in the large white can of capsicum spray which had been in his safe. He said he believed that can had had "a sort of fracture line or something like that on it. I couldn't say exactly where and my belief was that yes, it looked like it sort of (was) from the inside." As to what had occurred with the small can, exhibit 4, Mr Grace told him that, when he and the defendant were in Sydney, they had smelt capsicum gas in their car. He said that he (Grace) reached back and opened the weapons bag, saw that the can was punctured, "and grabbed it and held it out the window". Federal Agent McDevitt said his main concern about what had occurred was that the walls of the can were so thin. He added "if there was an officer with one on his belt, say, and they were rolling around and hit a rock, whatever, would it puncture just as easity. That was my concern". He said that normally, used objects such as the can would be put in a cardboard box in his office, and when enough had accumulated, he would take them to Ballistics for disposal. Before this had occurred with the can, exhibit 4, he was requested to ltocate it, which he subsequently did, and gave it to Detective Sergeant Cottam. FORENSIC EVIDENCE. The remaining evidence in the case related to scientific tests carried out by two forensic experts, one on behalf of the prosecution and one on behalf of the defence. Dr Lennard gave evidence on behalf of the prosecution. He is the Director and Principal Forensic Scientist in the Scientific Unit, Forensic Services, of the AFP. He is the hotder of a Doctorate in Chemistry, and has impressive credentials in the field of forensic science, in which he has worked for some ten years, including service with an overseas law enforcement agency. Dr Lennard said he had been requested by the investigators in this case to examine the can, exhibit 4, the shiv, exhibit 5, and the weapons bag, exhibit 7, with a view to determining whether the shiv could produce a puncture in the can while it was in the bag as allegedly believed by Mr Grace. He was also asked to carry out tests, using the shiv on cans similar to exhibit 4, in order to ascertain whether the shiv could produce a puncture in them such as was alleged to have occurred in the back of the car. Dr Lennard said he received the shiv, the can, and the weapons bag on 3rd May 1996. On the next day, he received another full can, and then later on, a further six full cans of capsicum spray, for comparison purposes. He carried out examinations of the first three items under white light, ultra-violet light, and a forensic light source. Under ultra-viotet light, on the blade of the shiv, he found some weak Tuminescent stains, and on the tape on the handle, some very weak luminescent stains, which were consistent with a small amount of capsicum gas. In the bag, he found small quantities of the same spray material on the canvas. They were relatively small stains, and were randomly distributed. They were, he said, consistent with drips from a nozzle rather than a leaking canister. He could detect a "very weak capsicum-type odour" in the bag. Dr Lennard said it was not possible to get a pin hole puncture from the shiv, and, where a probe was used to produce a hole, there was some evidence of the existence of the original hole when the shiv was used to enlarge it. In his view, there was no such evidence of a previous hole in exhibit 4. He conceded that he had not examined the can or the shiv microscopically. The Doctor said that in order for the shiv to penetrate the can, the latter had to be in a reasonably fixed position. If the shiv penetrated the can, and remained embedded in it, the can would discharge in tess than ten seconds. If the shiv was removed, the can would discharge in just a few seconds, On one occasion, he said, the can, when penetrated, sprayed back on to him. He was wearing a white coat at the time, and a pattern of spray went over it, consisting of small orange coloured stains in a mist pattern. He had been about a metre from the can when it was punctured. The puncturing had been effected with a "swift blow of fairly intense pressure". Dr Lennard said he was not requested to examine any other item originally contained in exhibit 7 in order to determine whether the can may have been punctured by an implement other than the shiv; neither had he of his own volition done so. He had also not tested any other items in the bag to determine whether there was evidence of capsicum gas on them. He agreed that ultra-violet light could reveal whether there was a presence of the gas on such items. Dr Lennard said he had not conducted any examinations to determine whether a pinprick size hole had first been made in the exhibit 4 by a small diameter object, and then a larger implement, such as the shiv, had penetrated it. He said this was because "any smali hole that would have been there would have been damaged by any other implement placed in that hole". He said that, from the "general examination" he conducted he saw no evidence of another hole being present. He agreed that if the shiv had initially penetrated the can, he would have expected to see a large amount of luminescence on it, reflecting a large discharge of capsicum gas. All he detected on the shiv was a weak luminescence "that could possibly have come from OC (capsicum) spray". He had not been told that a smal? initial hole "was likely", He was "only informed that the hole had been produced as given to me initially, that I was looking at a large hole in the side of the can. There was no consideration at that time that there had actually been a small hole in the can to start with". Subsequently, Dr Lennard agreed that there existed a possibility that the shiv had been later placed through a smalter hole. He added, however, that he formed the opinion that, if "the shiv was the implement that had originally perforated the can, that it was more likely that the can had no - was no longer under pressure because there was no spray pattern or staining on the handie of the shiv". Or Lennard agreed that the time taken for the can to empty when punctured depended on a number of factors, including the size of the hole, the contents of the can, i.e., whether it was completely under pressure or not, the orientation of the can, and whether the implement puncturing the can partly obstructed the escape of gas. He agreed that, depending on the circumstances, it could take from 50 seconds to a number of minutes for a can to be emptied. Dr Lennard said this was the first time he had conducted tests of this nature on a spray can. He did not agree that a metallurgist would be better placed to express an opinion regarding the nature and cause of perforations in cans such as exhibit 4. He agreed that he had conducted a general, rather than a microscopic examination of the can. Mr R. C. Barnes was called on behalf of the defence. Like Dr Lennard, his credentials in the field of forensic science are impressive. He is a scientific consultant specialising in forensic investigation. He holds a Fellowship Diploma in secondary metallurgy from the Royal Melbourne Institute of Technology, and is a chartered engineer. He holds several other qualifications in the field of forensic science, and iS a member of a number of associated professional bodies. He was, at one time, Division Head of the Chemistry Division of the Victoria Police State Forensic Science Laboratory, and has held positions in other investigative bodies, including Principal Chemist at the Austratian Analytical Laboratories, where he was responsible for major forensic investigations into explosions, fires and ballistics. His career in these areas has spanned some twenty years. Of particular relevance to the present case is his membership of the Standards Association of Australia "for over a decade" in impact testing materials. On Ist May 1996, Mr Barnes said he was requested to examine several objects which were then in the custody of the Internal Investigations Division (IID) of the AFP, namely, exhibits 4 and 5, and the assortment of sharp-edged implements, including knives and similar items, forming exhibit 6. He was also shown four canisters with which he understood Dr Lennard had experimented, i.e., exhibits 16 and 17. Mr Barnes said he carried out a "limited visual examination under the supervision of the Australian Federal Police" of these items, and took photographs of them. He noted that portion of the label on exhibit 4 had been folded back, presumably to allow examination of the substrate metal. He noted a slot which was approximately consistent with the general form of the shiv, exhibit 5. He also noted that the other canisters, exhibits 16 and 17, had been the subject of testing. He said that the testing "appeared to be limited to perforation tests with limited or no apparent evidence of detailed examination or metallurgical examination of the damage associated or inflicted to the canister" At the time of his examinations, Mr Barnes had read the reports of Dr Lennard on which the latter's evidence had been based. He noted that the appearance of the canisters was consistent with those reports, covering "the ability to perforate and possibly examining issues such as the rate at which leakage occurred". He said that Dr Lennard had detected weak luminescent stains on the tape of the handle of the shiv, and also in the weapons bag, exhibit 7. Mr Barnes said he observed an impact point on the side of the can opposite to the large hole, which was in the form of a small cross. He said the nature of the indentation indicated to him that a single object had been inserted possibly several times. On 9th May 1996, Mr Barnes carried out further, detailed examinations, again at the offices of the IID. On this occasion, he had with him a "high magnification precision optical microscope fitted with a camera attachment". He took photographs showing "gross damage to each side of the can (exhibit 4)". Those photographs, which had been taken at 80 times magnification, became exhibit 36. Mr Barnes also examined the items under ultra-violet light, to determine whether there was any presence of fluorescence, which would indicate the presence of a contaminate material, such as capscium gas. As to the examination of the large perforation on exhibit 4, Mr Barnes noted that in the upper corner of the slot, there was a "thumbnail zone of deformation extending beyond the edge of the perforation". He considered that the large perforation had obliterated evidence of the cause of the original perforation, but not the deformation surrounding it. He took further photographs through the microscope, and they became exhibit 38. Using the photographs, and others which became exhibit 39, Mr Barnes explained that the deformation on the upper margin of the hole in exhibit 4 appeared consistent with an object such as the shiv having been pushed into the can. However, he said "on the lower margin, the deformation is not consistent in that it is localised and is typical of that which occurs when one pushes a small diameter object into an aluminium alloy can of this nature". He went on to say that the "half moon deformation" could not have been made by a blunt instrument, and that to produce it the load had to be applied at a point, i.e., there had to be a "smali loading area". He added "I want to be clear, what I am saying is the damage I see, the deformation associated with gross perforation generally could be consistent with the shiv having caused it, however, the localised deformation shown in figure 7 (of exhibit 39) at the lower margin could not have been caused by the insertion of an item such as the shiv". Mr Barnes said he conducted experiments using a blade of similar dimensions as the shiv, and was unable to cause a deformation pattern in close proximation with that observed on exhibit 4. The only way, he said, this could be achieved was to first use a small diameter sharp object, and impress it into the wail of the can, perforating the wall and causing a small hole. When asked by Mr Bradfield which impact came first, the small half-moon shaped impact or the larger, grosser deformation, Mr Barnes said "it is not possible to produce the half-moon deformation in figure 7 (exhibit 39), subsequent to the slot, or larger perforation being created. That is simply because, had that been the case, evidence of localised damage and deformation on the edge above the fingernail impression....would be apparent, and I saw no evidence of that during my microscopic examination of the canister on 9th May". He added that the only way he could generate a deformation pattern of the type he noted on exhibit 4 was to impress a small diameter sharp object into the wall of the can, causing "a very small hole". Mr Barnes said he then examined a quantity of knives which he understood had been in the weapons bag, exhibit 6, conducting both a visual and ultra-violet light examination. No evidence of fluorescence was detected, leading him to conclude that they had not been in close proximity to capsicum gas. He also noted that the points of the items were conical, rather than flat, and were unlikely to cause the deformation pattern noted by him on exhibit 4. Mr Barnes said he asked to see what other items had been carried in the bag with the can at the time of its alleged puncturing. He said he was then shown a large canvas bag {exhibit 9), which contained "a large range of what I would loosely describe as prohibited items". He was not directed to any particular item. There were two implements in the bag, which, he said, he had obtained since his examination. They were an Artline marker pen and a can of WD40 spray {exhibits 41 and 42). He noted that the pen was of thin aluminium alloy construction, and contained a number of "significant localised or point tloadings that had _ been damaged. Things had been pushed up against it". He saw that there was a perforation approximately one-third up from the base on the side of the canister which appeared to have been caused by a sharp object. He also noted that the WD40 can was ae steel alloy container with solution under pressure. He said it would be significantly more resistant to things being pushed into it or penetrating it than the Artline marker pen or an aluminium alloy canister. Nevertheless, he noted numerous areas of impact or pressure damage by objects "which were over a spectrum from being quite sharp to relatively blunt". He accordingly formed the view that items stored in the bag "were routinely subject to loading, both slow and fast loading, by sharp objects in the bag". He added that that was not a surprising conclusion, given the range of such objects in the bag. Photographs of the pen and can became exhibit 43. Mr Barnes said he then noted in the bag a large torch, which had brass electrodes, or probes, protruding from the Tight source. This was referred to as a Patrol Light, said to be used as a type of "stun gun" overseas. It became exhibit 35. He said he observed that one of the non-ferrous probes, "was significantly damaged and bent". He then sprayed the contents of a capsicum gas spray can onto a plastic surface similar to that near the top of the torch, to establish a standard of what sort of appearance he might expect to see on the torch should there be evidence of contamination on it. He did this because any capsicum spray residues on the torch would fluoresce under ultra-violet light. He then examined the torch under ultra-violet light, and took a number of photographs, which became exhibit 44. "He observed fluorescence on the plastic body of the torch, which was a purplish colour, against the blue background of the plastic. The fluorescence on the control test plastic and that on the torch was "indistinguishable", he said. Mr Barnes then described tests he conducted, using a probe of the size of those on top of the torch, against the wall of a capsicum gas spray can. He said that when such a probe was forced against the can, it "readily perforated the side of the canister and created a round circular hole, but associated with the circular hole was a region of fairly severe deformation or damage, of course reducing in severity as one moved from the edges of the hole". Tests were carried out, he said, on full and empty cans. When the can was full it was more resistant to deformation, because it was pressurised. He did not measure loading for full or empty cans, as that was not the purpose of his testing. What he did note, he said, was "that I was able to penetrate a filled canister with ease". Photographs of the results of those tests were tendered as exhibits 45 and 46. Mr Barnes then rejiated how he had conducted tests to determine whether a pin hole puncture in a can could be obliterated completely by the subsequent insertion of a shiv, or blade of simiiar dimension to exhibit 5. Using the hole as a guide, he said he found it relatively easy to penetrate the can with the blade, thereby obliterating the hole. He went on to say, however, that what was not eliminated was the "localised distortion associated with the creation of the first pinhole or smailer hole, and that remained present even though a gross perforation had been created with the knife blade". The photographs of these test, taken at high magnification, became exhibit 47. He said they itlustrated a "thumbnail'' deformation of the same form and size which existed on exhibit 4, and which, although not identical, was similar. Mr Barnes said the rate at which leakage could occur froma can following its puncturing depended on a number of factors, including the amount of solution present, the nature of the implement perforating it, and the manner in which the implement caused the perforation. It also depended on the orientation of the can, i.e., its physical alignment, because it contained both propellant and the product to be sprayed. The amount of either of those substances egressing following a puncture would depend on where the puncture occurred. More propeittant than product would be expelled if the hole was made in an area predominantly containing the former, so that it was not correct to assume, he said, that "if you make a hole ina can ail the contents will btow out". He said this couid be demonstrated in the case of cans of spray paint, where, after use, the can is inverted and sprayed until the nozzle is cleared and only propellant escapes. The can may be near full, but if a "controlted hole", i.e., the exit nozzle, is created while the can is inverted, paint witli not be expelled. Mr Barnes said his microscopic examinations of exhibit 4 led him to the conclusion that there had been more than one penetration. He believed the initial penetration was by a "small diameter object which was relatively acute or sharp. Subsequently a larger object which was more blunt was inserted in the region of the initial perforation obliterating much of the physical damage caused by the initial perforation". He formed the view that "on the basis that the torch and other objects including, as I understand it, this canister were contained in the bag which was produced to me, the circumstances exist for these items to have come into contact at some time. That opinion is further supported by the presence of multiple impact or damage marks, including perforation of the Artline 90 pen and the WD40 steel can". He said that over a period of time, a can such as exhibit 4 would be subjected to damage and "that if that time and opportunity were sufficiently great a penetration may well occur...it depends on how things are stacked, it depends on where they are relative to each other, it depends on what happens to the bag". Mr Barnes said that, although no residues could be detected on the Tight source on the torch, the cesidues which he detected on the plastic body below that area were consistent with the spray contents of a capsicum gas can. In addition, using a probe, he was able to produce deformation patterns similar to that which were present on exhibit 4, and which were not entirely obliterated when that damage was overriden by the insertion of a large knife, or shiv, similar to exhibit 5. Mr Barnes said his conclusions would not have been possible if only aoegeneral, or even a low-powered microscopic examination, had been carried out. Only a high- magnification microscopic examination could reveal what he had described in his evidence. When asked to comment on Dr Lennard's tests, Mr Barnes said that he believed that Dr Lennard had been asked to consider only the possibility of damage to the can, exhibit 4, by the shiv, exhibit 5. He had not been requested to, nor had he of his own volition, examined other implements carried in the bag, exhibit 7, with the can. The examination Or Lennard carried out had also been general, not detailed, and was "extremely limited". It was not conducted with a view to "comprehensively examining all the circumstances relating to - as I understand it now - the puncturing of the canister". Mr Barnes said that if Dr Lennard had proceeded in the manner in which he (Mr Barnes) had, by examining the contents of the bag, he had "no doubt that Or Lennard, had he looked at those items, would have come to the same findings that I have". In cross~-examination, Mr Barnes said it would be possible for the shiv to be placed into a hole in the can because he was able to do so on an identical can, perforating it with a blade of similar dimensions as the shiv. This was so, he said, because there was a "deformation leading into the hole ....a little bit Tike a cup....and while the hole itself may not fully accommodate....exhibit 5, the cup, the deformation, may wel? do". He said he had no difficulty in accomplishing this. When asked whether he observed any contamination on the probes of the torch or the glass at its top, he replied he had not. He added that the glass and the plastic portion of the torch immediately below it were of different materials, and had "different absorbencies", He believed that any luminescence on the glass may have been wiped off. He said he did not test for other contaminates, such as perspiration, but did not find any evidence that such contamination had occurred. Mr Barnes said his brief was to examine the reports of Or Lennard, to comment on them, to examine other items which he deemed to be relevant, and to evaluate the conclusions drawn by Dr Lennard. He noted that the doctor had detected some fluorescence in the weapons bag, and had 'no reason to doubt that". As to whether, if he accepted that the occupants of the car said they detected the smelt of capsicum gas, that that meant propellant or gas was escaping, Mr Barnes said it was not a "black and white situation", He said he would expect, regardless of where the perforation was, that if propeliant, rather than gas, was escaping from the container, there would stilti be a smeli of capsicum. He added "the stuff is pungent and highly noticeable". When asked whether the point of the shiv could be accommodated in a hole in the can to the depth of one millimetre, he said that it would be possible, because of the "deformation zone" caused by the penetration of a small diameter object. He insisted that the shiv could not have caused the original hole. That was caused, he said, by a small diameter, relatively sharp object, which preceded a larger penetration by an object of similar dimensions to the shiv. Because of the nature of the probes on the torch, which could cause a small diameter hole, and the presence of fluorescence on its plastic body below them, he concluded "that there exists physical evidence which supports the contention that this torch was associated with the initial penetration of the can and the shiv may well have subsequently been inserted after the initial penetration". When pressed about that answer, Mr Barnes said there "may well be a connection" between the two objects, i.e., "in terms of that torch and that can". He said it would not be possible for a larger probe than the original one to be inserted into the initial hole before the shiv was inserted, because "the deformation patterns elsewhere around that end of the perforation would reflect that damage, and they do not". In his closing address, Mr Hastings said that the version of the incident on Parramatta Road given by Mrs Dyer should be accepted. He said her credit was unchallenged. She mistook the communication between the occupants of the bus and those in the car for some form of hostility, because she was unaware that they were known to each other. She believed that whatever had happened appeared to aggravate Mr Grace, who rummaged in the back of the car, before leaning out and quite specifically and deliberately, as the Commodore moved closer to the bus, sprayed at the windows, initially, of the driver, and then of the passengers behind him. In Mr Hastings' submission, Mr Grace had acted deliberately in consequence of "Some skylarking" between himself and those in the bus. He said this could be understood because of the nature of the training course which had been carried out that day, with quite "boisterous and vigorous" exercises involving some form of competitive activity between the instructors and the trainees. He suggested that this could result in "some chiacking or banter towards the instructors" when they came alongside the bus and that Mr Grace "as a form of retaliation, although in jest and as part of the general convivial atmosphere, would endeavour to frighten them or tease them or annoy them or in some way retaliate by spraying the gas in the direction of the bus". Mr Hastings said there was support for Mrs Dyer's evidence in that given by Federat Agents Crossling, Rahdon and Alston as to the "commotion" occurring on the bus when the two vehicles were alongside each other. The movement of some portion of Mr Grace's body) out of the window was corroborated by Rahdon. It was curious, he said, that Alston admitted he had called out to close the windows, but could not explain why he had done so. As to the other passengers, Mr Hastings said that those who observed little or nothing of what had occurred were, as mentioned earlier, "endeavouring to make their contribution to disguising the facts than genuinely giving their account of what happened or did not happen". There had been, he suggested, a "closing of the ranks". Federal Agent Collingwood's evidence regarding his not noticing the smell of capsicum gas in the car on its return to Sydney Headquarters provided some support for the assertion that the only discharge of the can had been when Mr Grace had "pointed it at the windows of the bus". There was no evidence, Mr Hastings said, that there were "tell-tale signs of stain" on Mr Grace's hands after he had returned to Sydney. There was no examination of the can. In his submission, the fact that the matter was dealt with so casually was because the version of the incident presented by the prosecution was correct. As the capsicum spray was being trialled by the very unit to which the instructors belonged, it woutd be logical to expect that there would be a great deal of discussion about the incident. That there was not, he suggested, was because there had been "an immediate recognition that a quite irresponsible and dangerous act" had been committed, and Grace and the defendant had embarked on a process of fabricating an excuse for the discharge of the gas out of the window. Mr Hastings submitted that it would be inherently improbable for events to have occurred within the car as claimed by Grace and the defendant. The vehicle had been travelling for up to 20 minutes before the incident occurred. The bag containing the can was held comparatively securely, with vests being pited on top, so that there was Tittle opportunity for there to be movement between the items in the bag resulting in the penetration of the can. It would be an "extraordinary fluke", he said, for this to occur. Mr Grace's stated method of, and time taken in getting the can out of the bag would also have involved a greater impact on the car's occupants of gas escaping than had _ been claimed. If the can had been punctured by the shiv, as Mr Grace believed, the car would almost immediately have filled with gas, rather than a "vague whiff' being detected, before he could retrieve the can. The can would also spray orange dye in all directions, including over Mr Grace. There was no evidence that this occurred. Mr Hastings described the evidence of Mr Barnes" as "irrelevant", because Mr Grace had said repeatedly in his evidence that he had to separate the shiv and the can, when he found the latter near the bottom of the bag. This meant that the case put by the defence, i.e., that Mr Barnes' investigations showed that another implement may nave penetrated the can, were therefore pointless. There was also Fitler's evidence that the shiv fitted into the hole which he saw in the can to a depth of about a millimetre. Or Lennard's tests, in Mr Hastings' submission, showed conclusively that the puncture could not have occurred in the manner implicit in Mr Grace's evidence. The can had to be held in a reasonably fixed position, with considerable force being applied to the can by the shiv in a stabbing motion to effect penetration. It was simply not possible to get a pin-hole puncture using the shiv. Mr Barnes' evidence was flawed because, among other things, he did not test the shiv and the can which were exhibits, but carried out irrelevant tests on other items. Dr Lennard said the gas would discharge in less than 10 seconds if the shiv remained in the can, and in just a few seconds if it was removed. It took about 50 seconds for the contents of the can to discharge through a pinhole. This demonstrated that the account of the event given by the defendant and Mr Grace was "intrinsically implausible". Mr Hastings also said there not been any = significant staining in the bag, which could be expected if the shiv had caused the puncture. Dr Lennard said that the stains he found were more consistent with drips from a nozzle. Further, Mr Hastings said, Dr Lennard did not find stains on the shiv when he received it, which would indicate that it was not proximate to the can when it was leaking. It shouitd here be noted, however, that Dr Lennard's evidence (page 102 of the transcript) was that, while he could not detect stains using a white light source, he did find "some weak Juminescent stains" on the blade, and "very weak Juminescent stains on the surgical tape" on the handle of the shiv when he examined it under ultra-violet light. Mr Hastings queried how the Patrol Light torch probe could have punctured the can, as suggested by Mr Barnes, and then, by some unexplained method, become dislodged from it so that the shiv took its place against the can, as seen by Mr Grace. All these factors rendered the version of the event given by Mr Grace and the defendant completely untenable. Mr Grace had deliberately sprayed at the bus, and he and the defendant had thereafter fabricated a story to cover-up what had occurred. Mr Hastings finally referred to portions of the particulars supplied in the charges of making false and misleading statements which he conceded were not supported by the evidence. In his closing address, Mr Bradfield said the defence case did not rest on a claim that the shiv had punctured the can, causing it to leak. Although Mr Grace said he believed the shiv was lodged in the can, and he separated the two items before discharging the can out of the car, his perception was wrong. The circumstances of his trying quickly to find the can in a bag full of weapons and sharp implements, with his eyes watering, and his vision and breathing affected, prevented him from making a calm, rational assessment of the situation. He had to move the vests first, then rummage through the items in the bag as fast as he could, looking for the can. His sole concern was to get it out of the car, as quickly as he possibly could, not to determine what had punctured it. His "split-second assessment" that the shiv had caused the puncture, because of their perceived proximity was mistaken. At} the tests carried out by Dr Lennard had been requested by the investigators to establish only whether the shiv could have punctured the can as believed by Mr Grace. Dr Lennard's tests were confined to determining that issue, and what results would be likely to occur if such puncturing did take place. He was not requested to, and did not of his own volition, test any other item in the weapons bag which may have punctured the can. The defence case was that the can had been most probably punctured by one of the probes on the Patrol Light torch, as Mr Barnes' tests demonstrated. Those tests were much more comprehensive and detailed than those carried out, with the Timitations imposed in his instructions, by Dr Lennard, whose tests, and the conclusions drawn from them, were therefore irrelevant. Mr Barnes' microscopic examinations, and the photographs yliustrating them, showed that there had been an original, small hole, caused by a small, sharp object such as the probe, which had been almost completely obliterated by the insertion of a larger, blunter object which created a second hove. That latter hole was consistent with the shiv being used to penetrate the can, using the first hole, and the cup-like deformation surrounding it, aS a guide. Mr Bradfield submitted that this was completely consistent with the evidence of the defendant and that of Special Agent Fitler as to their experiments in Canberra. It had not been suggested that Fitler was not telling the truth. The evidence of Mr Barnes was that the superimposition of the second hole over the first would not have been evident to Dr Lennard, who did not conduct a high-powered microscopic examination as had Mr Barnes. In addition, Mr Barnes found evidence of capsicum spray contamination on the plastic body of the torch, just below the light source and the probes. He had described, in his evidence, the many variables which could affect the rate of discharge of gas from a canister, including the amount of gas contained, the orientation of the canister, the nature and position of the object puncturing it, and the type of puncture caused. It was not possible to conjecture what circumstances existed in relation to the can's position within the weapons bag, or because of the variables referred to by Mr Barnes, what residue of the gas could be expected to be found in the bag itself in the event of a puncture occurring as a result of a torch probe coming into contact with the can. Finally, Mr Bradfield submitted that the Tribunal should take into account the fact that both his client and Mr Grace were, at the time of these events, Police officers of exemplary character. They were both highly qualified, experienced instructors in defensive tactics and many other associated fields of Police work, regarded by their supervisor, Federal Agent McDevitt, as being trustworthy and dependable. They had to be the "creme de ta creme", he | submitted, to even get into the Unit, Tet alone be trusted with the responsibilites involved with being senior instructors. In reply, Mr Hastings said he had "only one qualification" as to the evidence of the defendant's character, and that was his failure to find anything irresponsible about the "Joke" of Federal Agent Fitler, when he allowed Constable Pennell to go into the room where the leaking gas canister was, wearing a defective gas mask. No other challenge was made to any portion of the character evidence. From the above summary of the evidence and submissions by counsel, it is apparent that the issues in this matter are 1. Did Mr Grace deliberately spray capsicum gas at the bus? 2. If so, what was his motive ? 3. Was there a cover up by Grace and the defendant ? The only evidence before the Tribunal that there was a deliberate attempt to spray at the bus came from Mrs Dyer. She was the only witness to claim that the car moved closer, with Grace's hand a foot from the bus, and that the spray was directed at the windows of the bus. Both the defendant and Grace denied that either of these events occurred, As to the distance between the two vehicles at the time of the spraying, Hodder said Gra®@é@'s Gand was five to seven feet from the bus, and McLean said the car was mostly in front of the bus, "anywhere from five to ten metres approximately". Hodder denied he was lying, but there was no other evidence, apart from Mrs Dyer's, that the car moved closer to the bus. As to the actual direction of the spraying, Grace, the defendant, Hodder, McLean and Clucas did not say it was "at" the bus, but between the vehicles and to the rear. McLean agreed that, in his record of interview, he had correctly stated that the spraying was not in any particular direction, and that "he was just spraying it out the window". Clucas said he saw a "cloud of spray" which came back past the car and the bus and seemed to dissipate. As stated eartier, his statement was tendered, and he was not required for cross examination. The prosecution bears the onus of establishing, on the balance of probabilities, the elements of each of the offences with which the defendant is charged. There is no onus cast on the defendant. Mr Bradfield stated that he had agreed with Mr Hastings that the principles in Briginshaw v Briginshaw 60 CLR 336 applied to this case, ji.e., it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. However, the more serious the allegation, the higher the level of proof which is required. As Dixon J. in that case said, at page 362 : "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal". What then, is the more probable, Mrs Dyer's evidence that she perceived there to be a deliberate spraying at the bus in what she presumed was some sort of retaliation for annoying conduct by the bus passengers, or the evidence of five witnesses that the spraying of the can did not occur in that manner, i.e., itt was not directed at the bus? As stated earlier, Mrs Dyer is accepted as a truthful witness, but her evidence is so much at variance with the other five persons that I find it difficult to accept that it is more probable than not that she described what she saw accurately. It is a matter of notoriety in Courts and Tribunals that completely honest witnesses can give irreconcilable versions of the same event. Sometimes this is because of mistaken perceptions of what they observed, or to faulty recollection of those observations, or both. Either Mrs Dyer was mistaken, or the other five witnesses were mistaken, or, in the case of the defendant, Grace and Hodder, they were lying, as was suggested to them. Such an allegation was not, however, directed at Mclean, and Clucas was not cross-examined regarding his statement; their version of what occurred was not inconsistent with the other three. As part of an assessment of where the probabilities tie, it is necessary, as Dixon J. observed, to have regard to the three criteria stated in Briginshaw v Briginshaw: firstly, the seriousness of Mrs Dyer's allegation, i.e., that the bus driver and passengers may have suffered physical distress and perhaps harm because of Grace's alleged spraying of capsicum gas at them or in their direction; secondly, the inherent untikelihood of an experienced and senior Police instructor behaving in such a dangerously irresponsible way towards his students and a fellow instructor; and, thirdly, the gravity of the consequences to him, i.e., undoubted detriment to his Police career. The highest motivation suggested by Mr Hastings for Grace to behave in the way alleged was that he was doing so in retaliation for ""chiacking" from the bus passengers. The question must then be asked, why would a highly experienced and qualified senior Police instructor, accustomed to the effects of capsicum gas, just having completed a training course successfully with good relations between students and himself and the defendant, depart in such a_— grossly irresponsible manner from the standards which he had met up until that time ? In other words, would it be likely that such a person could so utterly lose his. self-control, putting others in potential danger, in responding to what was, at most, good-natured "chiacking"? There was no chaitenge made by the prosecution to Grace's character, or to his credentials, as set out in exhibit 36. Over a lengthy Police career, he has qualified as an instructor in seven areas of defensive and firearms tactics, and has co-ordinated or instructed in twenty-two types of training courses in the same areas. His supervisor said that instructors had to be "responsible, sensible (and have) commonsense". He did not suggest that Grace lacked those attributes. It would also be necessary, if Mrs Dyer's version of what occurred is to be accepted in preference to the other five eye-witnesses, for an assessment to be made of what motivation may have existed, assuming he knew of Grace's alleged misconduct, for the defendant to support him in a cover up by) making false statements and fabricating evidence. As I understood it, the prosecution's suggestion was that the defendant was allegedly supporting Grace as a result of some sort of misguided loyalty, although it did not seem to be put any higher than that. Again, applying the test in Briginshaw v_ Briginshaw, consideration would first have to be given to the seriousness of the allegation, i.e., that the defendant lied to the investigators, committed a criminal offence by telling lies to the Tribunal on oath, as well as conspiring with Grace to do so, and attempted to fabricate evidence by interfering with the can. Secondly, consideration would also have to be given to the "inherent unlikelihood" of a man of the defendant's unblemished character and professional standing as a senior Police instructor behaviny in that way. Thirdly, consideration would have to be given to the gravity of the consequences to him, i.e., as in Grace's case, undoubted detriment to his Police career. As to the second, or "inherent untikelihood" test, the evidence was that the defendant was regarded by Federal Agent McDevitt as "an extremely competent instructor...he $2 was someone who I could trust to do this sort of job to send away and teach people different programmes interstate. He could handle and was competent with all the weaponry and use of force paraphernalia that we used and he was a very competent instructor", A statement forming part of exhibit 34, the defendant's career credentials, was made by Federal Agent W. Comyn, a member of the Prime Minister's Protection Team. In it, he states that he knew the defendant while he (Comyn) was Chief Defensive Tactics Instructor at the Defensive Skills Training Unit. The defendant was an instructor with Comyn for a period of two years to 1994, having come to the Unit with an extensive list of qualifications in defensive tactics with the AFP and with NSW Corrective Services, where he had served for some years. Comyn said he regarded the defendant's performance as "outstanding". He was "highly regarded by his peers for his practical knowledge; his experience gave him a high degree of credibility". Comyn said he found the defendant to be "completely trustworthy in every sense". He added that a lot of the training was potentially "fatally dangerous", and the defendant, like the other instructors, had a "high degree of responsibility to (him)self and students", and could "be relied on to carry out, unsupervised, the training in a safe and professional manner". The defendant displayed a high degree of reliability even in times of heavy work load, he said, which earned him the responsibility of running many courses even though he was at the time a relatively junior instructor. Comyn concluded by stating that he regarded the defendant as "a professional, reliable and conscientious instructor who was a credit to the Police Academy". He added that he had never had occasion to reprimand him in any way. Privately, he found the defendant to be a "sensible, reliable, family- oriented man", and described him as calm and logical. Federal Agent Comyn's evidence was not challenged. As was the case with Mr Grace, the defendant's qualifications and experience in the field of defensive tactics training, and associated subjects, are very extensive, and are collated in exhibit 34. He has a total of some eighteen years experience in these areas of expertise, without any doubt being raised regarding his trustworthiness, He also stated, in his record of interview with Detective Sergeant Cottam of 20th April 1995 (exhibit 12) that he believed he had more experience with gas sprays, and their effect on people, than anyone else in the AFP, with Mr Grace being "next in Tine". That statement, which was not disputed during the course of these proceedings, would seem to support the contention that the defendant would be the least likely person to acquiesce in the misuse of capsicum spray by attempting to cover up such alleged misuse by Grace. In Vight of the evidence regarding the standing of the defendant and Mr Grace in their profession, particularity their trustworthiness and recognised sense oF responsibility, it also would seem Tess Tikely that Grace would act in a dangerously irresponsible manner, and that the defendant would then join with him in a farrago of lies and deceitful conduct to conceal the truth. As mentioned earlier, the suggestion by Mr Hastings in his closing address, that those passengers on the bus who were not called to give evidence were concealing the truth, is seriously weakened because they were thus not given the opportunity of responding to such a serious assertion. On the other hand, there were two areas of the defence case with which I found some difficulty. One concerned Mr Grace's insistence that the shiv had to be separated from the can, and the other to his evidence that there was no interplay between the bus passengers and himself. I will return to the first point later. There was ample evidence that there was some communication between the bus passengers and the car, although it was not suggested by anyone that it was anything other than a good- natured waving and exchange of pleasantries. Grace's recollection in that regard is obviously faulty, but not sufficiently so as to cast doubts on the rest of his evidence, except as to what he thought caused the puncture. Grace denied seeing the "rude gesture" alleged to have been seen by Mrs Dyer and Federal Agent Rahdon, but, curiously, by no one else, Assuming that the gesture occurred, and was seen by him, tt would seem highly improbable, given Grace's background, that it could be sufficient to goad him to act out of character in such a grossly irresponsible way. I turn now to the forensic evidence. If the evidence of Dr Lennard is to be accepted, which, in this regard it is, it would appear that it would be impossible for the can to be punctured by the shiv so that a pinhole puncture occurred, as claimed in the defence case. This is so because of the tests he carried out, using the shiv on similar cans, and on the examinations he conducted to ascertain whether there were relevant stains on the shiv and in the bag. However, while I accept the validity of Dr Lennard's tests and findings, including the impossibility of the shiv perforating the can in the bag as believed by Grace, all Dr Lennard's tests were directed to this end, acting on Grace's asserted belief that that had occurred. It is clear, from Mr Bradfield's submissions, that he recognised that this assertion by Grace is a major weak spot in the defence case. He suggested it could be explained by the circumstances of urgency in which Grace formed his belief. He was being affected by the leaking gas; his eyes were watering, affecting his vision; he was commencing to wheeze; there was great haste in his attempt to find the can among all the other weapons and items in the bag, and to get it out of the car as quickly as he could. There was no time for a calm and dispassionate assessment of the relationship between the shiv and the can. He made a mistake, and that mistake caused the investigation to take the wrong course by focusing on the shiv. As to the probability of that situation existing, it is relevant to consider what the bag contained. The items which were in the bag, exhibit 7, at the time, were tendered as exhibit 9, in a tlarge bag of similar size. An examination of that exhibit reveals it as being full of a disorderly jumble of weapons such as replica handguns, replica sub-machine guns, batons, martial arts implements, and similar items. Missing now, of course, are the implements tendered as exhibits, including the can, the shiv, the assortment of sharp objects such as "throwing stars" and daggers, and the Patrol Light. If Grace is to be believed, he had to rummage through those objects to find the can, which he said was near the bottom of the bag. His mistaken correlation of the shiv and the can in those circumstances assumes more credibility. Because their investigations pursued different courses, it is not principally a question of determining which body of forensic evidence is to be preferred, except for one area. Dr Lennard's mission was to determine whether the shiv could have punctured the can in the bag. He said it could not, and I accept that. However, he was asked whether a small puncture hole could have existed before the shiv later penetrated the can, and he said it could not, because he found no evidence of such prior hole. He said it would, in any event, have been obliterated by the later penetration. Mr Barnes, on the other hand, said he found evidence of such prior penetration because of the deformation he observed through a high-powered microscope; evidence which he said would mot have been apparent to Or tennard on his examination without such assistance. Mr Barnes' mission was principally to determine what may have caused an initial pinhole puncture, and he carried out tests with that in mind, concluding that the most likely item to have done so was a probe on the Patrol Light. He explained that this was because the probes were of the right size and nature, and there was evidence of capsicum contamination on the torch. Assuming the can was punctured in the bag, Mr Barnes said it would not be possible to ascertain precisely how this occurred, because of the juxtaposition of so many sharp objects, and the variable considerations which applied to an assessment of the rate of escape of the gas referred to earlier, such as the positions of the can and the object puncturing it, the force and type of impact, and amount of gas in the can. As stated earlier, Mr Hastings submitted that it was highly unlikely that the items in the bag could have moved, so that the can was punctured by an object such as the torch probe, and then that moved and the shiv came into contact with the can. This was so because of the way the bag was held firmly, with the vests on top. However, there was no evidence as to the way in which the bag was packed, or how many times it had been loaded and unloaded, or how objects within it could have moved or settled over the course of the trip. Grace said that, when he was looking for the can, he "pushed his hands down through them, moving them with my hands as [I went". There was no evidence as to what items were moved by him during this process, or what may have been adjacent to the can before he actually saw it, at which time it appeared to him that the shiv was inside it. Mr Barnes! evidence indicated that it was not a matter of whether the can would be punctured in the bag, but rather, when this would occur. His theory was that a probe on the Patrol Light torch may have caused a small puncture in the can. Propellant, rather than gas, may have escaped in the first instance, alerting the defendant and Mr Grace. Even in that event, there would be an unmistakeable odour of the gas. The rate and mixture of substances escaping from the puncture would determine what contamination was later found in the bag, and on other items, such as the shiv. That there was contamination noted by Dr Lennard on the shiv may indicate its proximity to the escaping substance, and Mr Barnes said he had no doubt about Dr Lennard's finding of contamination in the bag. The latter said, that, depending on the circumstances, it could take from 50 seconds to a couple of minutes for a can to discharge. The defence case was that this was consistent with Grace's evidence as to what occurred. Of significance is Mr Barnes' assertion that if Or Lennard had had the same brief as he did, i.e., to test items in the bag with a view to determining which was the most likely to have caused a pinhole puncture in the can, using high- powered miscroscopic examinations, he (Or Lennard) would have come to the same conclusions. That statement is important because Dr Lennard was present at the Tribunal hearing when Mr Barnes gave his evidence, and he was not called by the prosecution to rebut any of that evidence, including, in particular, the last-mentioned assertion. It must be said that Mr Barnes presented as a credible witness, well qualified as a forensic scientist, and expert in the field of metallurgy and impact testing of materials, to express the opinions which he did. While his evidence was not conclusive as to what punctured the can, he posed a convincing scenario that it could have been a probe on the Patrol Light torch. As to the alleged attempted fabrication of evidence by the defendant in creating the large hole in the can, his evidence, and that given by Grace, was that there was a small, pinhole size puncture in the can initially. The evidence of McDevitt was that there was a hote, but he could not recall what size it was. Fitler said that there was a small, about one millimetre size, hole in the can before he and the defendant started to experiment with other objects to determine how thin the walls of the can were, and that evidence was not challenged. I found convincing Mr Barnes' evidence that such a hole was produced before the later large hole which was principally caused by the defendant, with Fitler's assistance. The defendant's evidence, supported by Fitter, that the hole was made as part of their testing, is, in my view, more probable than the prosecution's assertion that it occurred in an attempt to fabricate evidence regarding how the can was originally punctured. One matter of relevance in this regard relates to the intended discarding of used cans. McDevitt said that such items were stored for a while, then he arranged their disposat. He regarded the can in question as "rubbish" That being so, it makes more credible the evidence of Fitler and the defendant that, in inserting objects into the can, they were unconcerned about its being thereby damaged. The fact is that onty McDevitt was responsible for disposal action, so that it was known that the can would be preserved in the condition in which the defendant and Fitter left it until that action was taken. None of those three persons was aware of Mrs Dyer's complaint, or of any investigation being undertaken, at the time the can was damaged. Fitler was called as a witness for the prosecution, and it was not suggested to him that he was not telling the truth about the testing of various implements on the can, or the reasons given by the defendant, and by himself, for what was done by them. From that evidence, it foltows, in my view, that the probabilities favour the proposition that the defendant was telling the truth about why he and Fitter caused damage to the can by enlarging the hole which he, Grace, Fitler, and McDevitt swore was there in the first place. To summarise my assessment of the evidence 1. Mrs Dyer's evidence as to the manner of Grace's spraying of the capsicum spray Canister is not more probable than the version given by the defendant, Mr Grace, Constable Hodder, Federal Agent McLean and Constable Clucas, 2. The evidence discloses no realistic motive for Grace deliberately to spray capsicum gas at a bus containing a colteague instructor and trainees who had been his responsibility. 3. The spraying could accordingly not be found, on the balance of probabilities, to be deliberate. 4. Mr Grace's asserted belief that the shiv had punctured the can was, on the scientific evidence, clearly mistaken. Although the evidence of contamination on the shiv indicates it must have been exposed to capsicum gas, and therefore in close proximity to some form of escaping gas, it could not have been the implement which caused the puncture. 5. Given that it is more probable than not that the can was not discharged deliberately, the probabilities favour the evidence of Grace and the defendant that it did leak inside the bag. 6. Mr Barnes' conclusion that a probe on the Patrol Light is the most likely imptement to have caused a pinhole size puncture is, in the absence of any contrary evidence, the more probable scenario as to what occurred. 7. There was no cover up of the alleged misuse of the capsicum gas canister by Grace and the defendant, or, in view of Mr Hastings' submissions regarding most of the passengers on the bus at the relevant time, by any other person. CONCLUSION, Because of my assessment of the evidence, I believe the prosecution has not discharged the onus it bears, having regard to the principles enunciated in Briginshaw v Briginshaw, of establishing its case on the balance of probabilities. It follows that I find the defendant, Constable Peter Ross Hill, not guilty of the charges against him. Vv J.3.DAINER, MEMBER.