JUDGMENT No. fete Lond IN THE FEDERAL POLICE DISCIPLINARY TRIBUNAL FPOT No 6 of 1997 COMMISSIONER OF POLICE Vv. STAFF MEMBER NORMAN H. LEWIS TRIBUNAL : SPECIAL MAGISTRATE J3.3.DAINER AM, RFD, MEMBER. DATE : 18th MARCH 1998 PLACE : CANBERRA, A.C.T. FINDINGS. 1. On charge No AFP:WENLOO1, alleging that Staff Member Norman Harry Lewis, as an appointee of the Australian Federal Police, committed the offence of improper conduct, contrary to Regulation 18(1)(d) of the Australian Federal Police (Discipline) Regulations, the Tribunal finds him guilty. 2. On charge No AFP:WENLOO2; alleging that Staff Member Norman Harry Lewis, aS an appointee of the Australian Federal Police, committed the offence of improper conduct, contrary to Regulation 18(1)(d) of the Australian Federal Police (Discipline) Regulations, the Tribunal finds him guilty. In accordance with Section 67(3){b) of the Complaints (Australian Federal Police) Act 1981, the proceedings are hereby remitted to the Commissioner of Police for the imposition of a penalty on the member in respect of each breach of discipline. \ ! : . Le 7 1 ; / fe coe hy eel ey (JOHN J.DAINER) MEMBER A eucenoscerse IN THE FEDERAL POLICE FPDT 6 OF 1997 DISCIPLINARY TRIBUNAL COMMISSIONER OF POLICE Wan STAFF MEMBER NORMAN H. LEWIS TRIBUNAL: SPECIAL MAGISTRATE J.J.DAINER AM, RFD, MEMBER. DATE : 18th MARCH 1998. PLACE : CANBERRA, A.C.7. REASONS FOR DECISION. Staff Member Norman Harry Lewis was charged with two offences under Regulation 18(1){d) of the Australian Federal Police (Discipline) Regulations. The first charge, AFP:WENLOO1, alleged that, as an appointee of the Australian Federal Police, he was guilty of improper conduct, either in his official capacity or otherwise. The particulars of the charge were that, on 31st July 1996, at Kiama in the State of New South Wales, he represented himself to Mr Graham Walker as a member of the Australian Federal Police by identifying himself as being from the Australian Federal Police undertaking surveillance, and by producing an identification card to him. The second charge alleged that, as an appointee of the Australian Federal Police, he was guilty of improper conduct, either in his official capacity or otherwise. The particulars of the charge were that, on 31st July 1996, he was absent from on or about 1230 hours to 1710 hours on that day without permission or authority. By consent, the charges were heard together, on 13th February 1998. Mr T. Howe appeared on behalf of the Commissioner of Police. Mr 3. Constance appeared on behalf of Staff member Lewis. I will deal with charge AFP:WENLOO1 first. The facts were within a comparatively small compass, the only real dispute being the content of a conversation which was alleged to have occurred between Mr Lewis and Mr Graham Walker on 31st July 1996 at Kiama. Because of evidence given regarding the difference between a "Sworn Member" and a "Staff Member" of the Australian Federal Police (AFP), it should be noted at this point that the former description applies to a person who is sworn in as a Police Constable, however described, and who has duties and responsibilities as well as powers as such, e.g., the power of arrest. The latter description applies to a person who performs administrative duties, in the same way in which a public servant does, and who does not have the duties and responsibilites or the powers of a sworn member. This distinction is of importance when the factual situation in this matter is examined, because the essence of the Commissioner's case is that Mr Lewis, who was ai staff member, represented himself to be a sworn member. Mr Lewis has been a staff member of the AFP for some 14 years. He was working at the relevant time at the Archives Office at Mitchell in the ACT as an Acting Work Level 4, a relatively seniar pasition within the AFP, and was entitled to the use of a Commonwealth privately-plated motor vehicle. He had been involved in proceedings in the Famity Court for some time, and had been having difficulties regarding access to his 12-year old son, who resided with his mother in the Wollongong area. On 31st July 1996, Mr Lewis was working at the Archives Office when he decided, "on the spur of the moment", at 1200 or 1230 hours, to go to Kiama, near Wollongong, where his son attended school, to see him. He had not made any prior arrangements to have access to his son in this manner. Mr Lewis drove to Kiama, arriving at approximately 1500 hours. He waited outside the primary school which his son attended, watching for him. He saw some children on bicycles and followed them, to see if his son was among them. He also drove to the railway station, and past his son's home, without finding him. He then decided to observe school buses entering the area. Mr Graham Walker, the person mentioned in the charge, gave evidence that about 1615 or 1620 hours, his 12-year old daughter, Carli, arrived home from school with her school friend Jemma. She was 15 or 20 minutes late, and was "in an excited manner". On Mr Walker inquiring as to why she was late, he said his daughter told him that there had been a man in a car watching them when they got off the school bus. They referred to him as a "stranger". Mr Walker said Carli told him that the car drove past them, then did a "U-turn and then parked on the opposite side of the road to them and seemed to be observing them. The two girts were apprehensive about the man's behaviour and stopped. At that stage, Jemma's mother, who was observing them, walked down the road towards them to see what was going on, and the car drove off. Mr Walker said he had to drive his daughter to a piano lesson at 1630 hours at a house about one kilometre away. The route he took was the same as that traversed by Carli on the way home from the school bus. As they approached Gainsborough Oval, Carli pointed to a car which was stationary on the side of the road, and said "That's the car, Dad". Mr Walker believed the car was a "charcoal grey Ford". He saw a man get out of the car and walk towards a playground where there were children aged about 12 to 16 playing. The man looked at them, and then returned to the car. Mr Walker continued past the car and dropped his daughter off for her piano lesson. When passing the car, he said he made a mental note of the registration number. While his daughter was leaving the car, Mr Walker said the other car pulled up about 30 metres in front of him. The male driver "seemed to be turning around and watching". Mr Walker said that "at that stage I thought well I better go and see what's happening". Mr Walker approached the car, and noticed that the driver, who it was conceded was Mr Lewis, was talking on a mobile telephone. He Knocked on the driver's window, and said "Are you lost ?" He said Mr Lewis replied "Why?", to which Mr Walker responded "Because you have been driving around looking and a few people have noticed you and it seemed to be a rather suspicious activity" Mr Walker said that Mr Lewis replied "It's all right, I'm a Federal Police Officer and I'm doing surveillance". Mr Walker said he asked Mr Lewis for some identification, and was handed a "blue and white striped laminated card" which he took and examined. He said Mr Lewis' photograph was on the card, and the words "Australian Federal Police", together with a "current date". Mr Walker said the card "looked very authentic". He said he handed the card back to Mr Lewis, and said "I'm sorry. That's okay, I'm sorry". He said Mr Lewis replied "It's really okay. It's really all right, mate. It's all right". Mr Walker said that Mr Lewis made no mention during this conversation about looking or waiting for his son. After returning to his home, Mr Watker said he had a discussion with Mrs King, the mother of his daughter's friend, Jemma, at about 1640 hours. Mrs King told him that she had observed the two girls standing still an the side of the road opposite to Mr Lewis' car. Mr Walker said his suspicions were aroused following this discussion and "that perhaps everything wasn't as it 6. appeared and I could not understand why an Australian Federal Police officer would be doing surveillance..... watching bus stops in our area". Mr Walker said that, between 1630 and 1700 hours, he made some rough notes regarding what had occurred. A photocopy of the notes was tendered as Exhibit 3. He said that he had forgotten the mental note he had made of Mr Lewis' car's registration, because he "felt sure he was an Australian Federal Police officer (and) felt at ease and calm about the whole thing, and (the) number stipped from my mind". On his having second thoughts about the matter, he tried to reconstruct the number in his mind. He recalled that the number plate had "ACT" on it, and something like "YZ763" or "YZ0363". Included in the words written by him in the notes was the paragraph : "I then approached him to enquire what was going on. To this he replied 'It's alright - I'm a F.P.0. doing surveillance. It is really alright'. He showed me his I.D.", Mr Walker said that at about 1655 or 1705 hours he rang the Wollongong or Illawarra office of the AFP and spoke to Linda Norman, a staff member of that organisation. He said that, as far as he could recall, he "reiterated what events had happened as I've explained to (the Tribunal) to-day and also inquired whether there would be due cause for a Federal Police officer to be doing surveillance work in our area". Ms Norman returned his call later and told him that "there were no officers in the area on surveillance". In cross-examination by Mr Constance, Mr Walker agreed that he told Federal Agent Edwards that he believed the photograph on the the card shown to him by Mr Lewis was coloured, conceding that the photograph was in fact black and white. He agreed that he had never seen an AFP identification card before. Mr Walker was pressed regarding his recollection of the conversation with Mr Lewis. Because this area of the case is of critical importance, I believe it important to quote the relevant areas of cross-examination. Mr Constance suggested that Mr Walker's recollection was faulty, and the following exchange occurred "TIT want to suggest to you that when you spoke to him what he said was these words 'that he was an employee with the AFP'. Is that possible? --- Yes. Because ---?--~-Can I just say it's possible but I doubt it. But you're not sure?---I'm not sure. He could have said that?-~-Yes." In his closing address, Mr Constance quite properly relied on this passage to cast doubt on Mr Walker's earlier evidence about his assertion that Mr Lewis had said he was an AFP officer doing surveillance. However, following cross~examination and re-examination by Mr Howe, IT asked Mr Walker to clarify the apparent discrepancies between his evidence-in-chief and the answers quoted. In recounting the former, and what was put to him by Mr Constance, I concluded by saying "...the word 'employee' is quite different from the words which you say Mr Lewis said to you. Would you just clarify that, if you don't mind?", to which Mr Walker replied "Well, my recollection would be that he definitely didn't say the word "employee'. I was understanding that Mr Constance was just making an inference that he was working perhaps with the Australian Federal Police office, that's what I was assuming he was alluding to". I went on to ask "...but is it your clear recollection that the words 'I'maFederal Police officer doing surveillance' were said'', to which he replied "I'm reasonably sure that they were the words 'I'm a Federal Police officer', and, yes", I then asked "And "doing surveillance'?" to which Mr Walker replied "Definitely". Ms Linda Norman gave evidence that she was a staff member of the AFP, employed part-time as an organisation psychologist. At the time of giving evidence, she had been so employed for just over five years. In answer to Mr Howe, she said she would not ever describe herself as a member of the AFP. On 31st July 1996, Ms Norman said she was working from her home in Wollongong. The AFP office in that area was closed, and telephone calls were diverted to her home. At about 1835 or 1845 hours on that date, she said she received a telephone call from Mr Walker. She said Mr Walker described the incident involving Mr Lewis earlier that day. She said he told her that when he first approached Mr Lewis, the latter said "I'm with the AFP", and then showed Mr Walker a blue plastic identification card. She said Mr Walker told her that the driver did give his name, but he could not recall] what it was, believing it was something like "Hollis". When asked by Mr Howe whether there was any reference to "surveillance", Ms Norman replied "I was under the impression that the car was on - the person in the car was on surveillance. I'm not absolutely clear that = my conversation with him mentioned the word = surveillance although I was under the impression that the person in the car was an AFP officer, or had said he was an AFP officer on AFP business, and I believed it was surveillance". Ms Norman said that when Mr Walker told her that the driver had produced a blue plastic identification card, that, to her, "immediately reflected a staff member's card. A police officer or a person who said that they were a police officer would have had a police badge. That's quite clear. That's what they use". Ms Norman went on to say "...and it was then that the alarm bells started to ring with me and I was concerned because he was a person who possibly wasn't a sworn officer hanging around children and I felt that there was a possibly a potential for danger for children". She said that, rather than wait until the next morning, she telephoned a friend who was a sworn member, and was advised to check whether the car was in fact on surveillance given it had ACT plates. She then telephoned the ACT region of the AFP, and was told that there was no car in that area carrying out surveillance. The. registration number which 10. she had was not certain, and did not fit the description of the car which Mr Walker had passed to her, which was a "charcoal grey, black late model Ford (Commodore)". Because of the uncertainty regarding the registration number, Ms Norman said she decided to call the Interna} Investigation Division the following morning. She said she made notes following the conversation with Mr Walker, and a photocopy became Exhibit 5. When asked by Mr Howe whether the issue of surveillance was raised by Mr Walker, or by her, Ms Norman replied "I think Mr Walker did, but it is an impression". When asked "Would you have had any reason to consider the possibility of surveillance, apart from any reference Mr Walker made to that topic?" she replied "No, that's not a word I use very often". During cross-examination by Mr Constance, Ms Norman said it would not be normal to call a staff member an "'officer". She agreed that, while she would not describe herself as a "member" of the AFP, she would have no difficulty in calling herself an "employee". As to use of the word "surveillance", she said that she was under the impression that the person in the car was on surveillance, and that this was gained from "the conversation that (Mr Walker) had with the driver". When questioned by me as to whether she had used the word "surveillance", Ms Norman said "No, I didn't use the word *surveillance'. I woutdn't have introduced..." Ll. I then asked "No, it is not a word you use?" to which she replied "No, I wouldn't have introduced the word "surveillance'' into the conversation". When I then said "So it must have come from Mr Walker", she said "I think so". Ms Norman, during further questioning by me, said "...the conversation Mr Walker had with the driver, in my mind, it was clear that the driver was on official business with the AFP". When she was asked "Mr Walker's evidence was that he was told by Mr Lewis that he, Mr Lewis, was an AFP - correction, a Federal Police Officer doing surveillance, unquote. Was that ever said to you?" she replied "It could have been". Evidence was then led by Mr Howe from Mr P.Harris in relation to the second charge, to which I will return later. At the close of the Commissioner's case, Mr Constance called Mr Lewis, his sole witness. As to the events at Kiama on 31st July 1996, Mr Lewis said that when Mr Walker approached his car, he said something like "Can I help you, are you lost?". Mr Lewis said he responded with "No, I'm just here to pick up my son". He thought he may have added something like "he lives in Kiama". Mr Lewis said that Mr Walker then followed on after a short break, with "Look, well, you've been seen acting suspiciously around children in the area". Mr Lewis said he thought "Oh, jeez, I can see what he is probably coming from". 12. He went on to say "So I said, to allay his fears - I said "Look, I am (an) employee of the AFP', and then I think I produced ~- to show who I was - the bona fides of myself. I actively handed my plastic card to Mr Walker". A card said to be identical with the one then alleged to have been shown to Mr Walker was tendered as Exhibit 4. Mr Lewis said that Mr Walker "intently examined the card both sides" and then there was further conversation along the lines of "sorry to bother you or something". He went on to say that Mr Walker gave the card back to him, and that "it seemed to have satisfied him who I was and I was indeed there just trying to pick up my son", In response to questions from Mr Constance, Mr Lewis said he was aware of the serious consequences of attempting to impersonate a sworn Police officer, and that it could "end your career, your life, etcetera, the works. You'd be prosecuted basically and under statute". He denied emphatically Mr Walker's allegation that he had said he was a "Federal Police officer (and was) doing surveillance". He insisted that he had said only that he was an "employee of the AFP or with the Australian Federal Police". He agreed that he had said, in the record of conversation with Federal Agent Edwards on 12th September 1996 that he had told Mr Walker "..I was an officer of the AFP only for identification purposes". In response to Mr Constance's questions, Mr Lewis said that that statement was incorrect. He said that by "officer" 13. what he meant was "employee of the AFP because there was some references about officers of the AFP loosely being talked about in ~ around that time and I did it in a general sense but it was really meant as an employee of the AFP", In cross-examination by Mr Howe, Mr Lewis said that he was "categorically" sure that he had told Mr Walker that he was there to pick up his son. As to the response given by him, referred to above, in the record of conversation with Federal Agent Edwards, he told Mr Howe that the reference to being "an officer of the AFP" was a "stip of the tongue". He agreed that his response to a further question as to whether he had described himself as "an officer of the AFP" was also "a slip of the tongue". His response was "...a member or officer of the AFP, member or staff member - we're all members of the AFP. My main - I can't quite remember exactly the terminology. I said "Here's to validate my identification'..... Mr Lewis insisted that he had told Mr Walker that he was an "employee of the AFP". Mr Howe put to him that his evidence before the Tribunal was precise as to the use by him of the term "employee of the AFP", yet during the record of conversation he had told Federal Agent Edwards that, when he produced his identification card, he had said "I'm with the - I'm an employee - I'm with the - I'm employed by the AFP". He agreed that that passage reflected "a degree of confusion and lack of recollection on (his) part as to the precise words" used. 14. In his closing submissions, Mr Howe said that Mr Walker should be believed as to his version of what was said. His anty mistake was in relation to the colour of the photograph on the identification card. He was precise in all other details, and made a note of his observations shortly after the event. He was sufficiently disturbed by what had occurred to go to the trouble of contacting the AFP to have the matter checked out. One significant part of the evidence was the use of the term "surveillance". If it was accepted that Mr Lewis had used that term in his conversation with Mr Walker, it was more than likely that he had also said he was a "Federal Police Officer", because it would make no sense for a staff member to be carrying out surveillance. Mr Howe submitted that Mr Lewis was under "acute pressure", and had a strong motive to explain his actions to Mr Walker regarding the school children. By claiming that he was a Federal Police Officer on surveillance he did "so as to cloak his actions with the legitimacy he was concerned to impress upon Mr Walker" (the transcript records "Mr Lewis" at that point (p.74)). Mr Constance submitted that, although Mr Walker had examined the identification card, he had mistakenly believed that the photograph thereon was coloured, whereas it was black and white. Having satisfied himself that the photograph matched Mr Lewis, and observed the AFP inscription on the card, Mr Walker had, in Mr Constance's submission, reached the view 15. that Mr Lewis was a Police officer, and, as with the colour of the photograph, was mistaken in that belief. His client had vehemently denied having told Mr Walker that he was a Federal Police officer doing surveillance. He was equally adamant that he had told Mr Walker that he was waiting for his son, and that he was an "employee of the AFP". Mr Constance conceded that there was some uncertainty displayed during the record of conversation, as related above. However, this occurred during a two-hour interview, and had to be seen in context. He agreed that Mr Lewis had "stumbled over it", i.e., as to what he had said as to being "an employee". As to Ms Norman's evidence, Mr Constance said that her recollection was that Mr Watker told her that "the driver, on being questioned, said he was with the AFP". In his submission, the mention of the word "surveillance" in that context, in her note (Exhibit 5) would have been expected, had it been used by Mr Walker. Ms Norman had "...quite unsatisfactorily, tried to gild the Tilly a little bit about this issue of surveillance and she came up with this idea, well it was her impression". Mr Constance referred to Mr Walker's concession, during cross-examination, regarding the possibility of Mr Lewis having said he was an "employee of the AFP", submitting that this must raise some doubt about his earlier evidence. Finally, Mr Constance submitted that a man of his client's experience of some 14 years with the AFP, was well aware of 16. the seriousness of passing himself off as a sworn officer, and that, if convicted of such a matter, he could see his career terminated. It would be quite irrational, in Mr Constance's submission, for a person in his client's position to act in the manner alleged. There was another area of evidence regarding the alleged production by Mr Lewis of his identification card when pulled over for speeding some two and a half years previously, in respect of which he was cross-examined by Mr Howe, and to which Mr Howe referred in his submissions. I do not, however, believe that that evidence is relevant in determining the issues in this charge. The onus of proof is borne by the Commissioner, and it is the civil onus of proof on the balance of probabilities, i.e., if the Tribunal is satisfied that the Commissioner's case is more probable than that of Mr Lewis, the charge succeeds. On the other hand, if Mr Lewis' case is the more probable, the charge fails. The third proposition is that if the Tribunal finds the probabilities evenly balanced, the charge also fails. The issue of credibility is obviously of critical importance in this case. It was not suggested by Mr Constance that Mr Walker was lying about what had occurred, but that he was mistaken, and that Mr Lewis should be believed. It is obvious that there is little room for common ground regarding the conversation which is central to this case. 17. If Mr Lewis used the words alleged by Mr Walker, i.e., "It's al? right, I'm a Federal Police Officer and I'm doing surveillance", the charge is made out. Equally, if Mr Lewis' evidence that he said he was an "employee of the AFP" and also said he was there to pick up his son is acccpted, the charge is not made out. I referred earlier to Mr Constance's cross-examination of Mr Walker, in which, when asked if Mr Lewis said he was "an employee of the AFP", Mr Walker said "..it's possible but I doubt it", and where he agreed with Mr Constance that Mr Lewis could have said that. That evidence must be evaluated in light of what Mr Walker subsequently said, in answer to my questions. Then, he said that Mr Lewis ",...definitely didn't say the word -employee'". He said he was "reasonably sure" that Mr Lewis said "I'm a Federal Police Officer". As to whether Mr Lewis continued with "and doing surveillance", Mr Walker replied "definitely". It is correct to state, as Mr Constance did, that Ms Norman's recollection of Mr Walker's discussion with her was to the effect that the driver of the car (Mr Lewis) had told him he was "with the AFP". As to the use of the term "surveillance", Mr Walker's evidence (page 11, transcript) was that, in addition to relating to Ms Norman what he later told the Tribunal, he had "also inquired whether there would be due cause for a Federal Police officer to be doing surveillance work in our area". 18. Ms Norman was unsure, during evidence-in-chief, whether the word "surveillance" had been used during the conversation with Mr Walker, but said that it was her impression that it had. Her notes (Exhibit 5) refer to "surveillance listings" and a telephone number, and she did in fact make a telephone call to ascertain whether an AFP vehicle had been engaged on surveillance in the Wollongong area. In addition, in answering my question as to whether the word had been used by her, she said {(p.32, transcript) "No, I wouldn't have introduced the word 'surveillance' into the conversation". When I then inquired "So it must have come from Mr Walker?" she replied "I think so". On being asked whether Mr Walker could have told her that Mr Lewis had said he was a "Federal Police officer doing surveillance", Ms Norman agreed that "it could have been (said)". In deciding where the probabilities lie in this issue, the following factors are important 1. Mr Walker's notation on Exhibit 3 that the words used were: "it's alright. I'm a F.P.O. doing surveillance. It's really alright". 2. Mr Walker's report to Ms Norman, in which the probabilities favour the proposition that he used the word "surveillance". 3. Ms Norman's action following her conversation with Mr Walker, when she made inquiries as to whether an AFP vehicle was on surveillance in the area. 4. Ms Norman's evidence, quoted above, during which 19. she agreed that she had not introduced the word "surveillance" into her conversation with Mr Walker, and that she thought he must have done so. On that evidence, I am satisfied that Mr Walker's evidence has been corroborated to the extent that it is more probable than not that his version of the discussion with Mr Lewis is correct. In addition, Mr Lewis' assertion that he had said he was waiting for his son was rejected by Mr Walker, who denied that anything was said about his son. Finally, the confusion reflected in the record of conversation as to whether Mr Lewis had used the term "officer", rather than "employee" throws some doubt on the precise evidence given by him before the Tribunal. _If the evidence had been left where it stood following Mr Constance's cross-examination of Mr Walker, in which he appeared to resile somewhat from his earlier evidence as to what was said, I would find that the probabilities were evenly balanced. However, because of the factors listed above, I have reached the view that the probabilities favour the Commissioner's case. There is no doubt in my mind that Mr Lewis was under stress regarding the Family Court proceedings, and his desire to see his son is perfectly understandable. However, it is clear to me that he was acutely aware of the impression that his behaviour in observing the school children must have 20. created in Mr Walker's mind, and I believe that, as he said himself in evidence, he wanted to "allay his fears". It seems to me that Mr Lewis, under pressure, unwisely decided that the best way to effect that objective was to attempt to reassure Mr Walker by telling him that he was a Federal Police officer doing surveillance, and that this would be the simplest way of diverting suspicion. I should mention Mr Constance's submission that the contents of the identification card should have been sufficient to establish to Mr Walker that the bearer was not a sworn member, but a staff member. Given the situation, that Mr Walker was a lay person, unused to AFP identification cards, and having no prior experience with AFP personnel in the community in which he lived, no weight could really given to his failure to detect the difference. Indeed, I would expect that it would not be a matter of common knowledge among lay persons in the community at Jarge, that there was a difference between sworn and staff members of the AFP. It follows that I find the first charge made out. Turning now to the second charge, i.e., that Mr Lewis was absent from his duty without permission or authority between the hours of about 1230 hours to 1710 hours on 31st July, 1996, it was not in dispute that Mr Lewis was absent from his duty during that period. Mr Lewis' defence was that it was commonly accepted that some flexibility was permitted among staff in his area regarding taking short periods of leave. 21. The Commissioner's case in retation to this charge was led through Mr P.R.Harris, an AFP staff member, and Acting Co- Ordinator, Logistics. He said that tn July 1996 he occupied the same position, at Acting Level 4. He said that he and Mr Lewis were on the same level, and that Mr A. Hoitink was Mr Lewis' supervisor. He and Mr Hoitink were located at AFP Headquarters. So far as Level 4 personnel taking time off, it was Mr Harris' evidence that the member's supervisor had to be informed in advance, that the absence had to be approved by such supervisor, and the approval recorded on the weekly time sheet. He said that, in his own case, he "would have to seek approval from his supervisor, inform him that I was taking time off and submit a Teave form". Mr Harris said that, after being infarmed that he was required to give evidence before the Tribunal, he spoke by phone to Mr Lewis and told him he had been asked "to give evidence in relation to any informal arrangement he may have had with me as regards taking time off and then making it up at a later stage, and I told him my evidence would be that we did mot have such an informal arrangement and that's the evidence I would be giving". He said he was unaware of any informal arrangement in the Archives Section regarding staff taking time off and then simply making it up later, without recording the matter. Mr Lewis said in evidence that he had instituted an informal arrangement with his staff at the Archives Office, on "the 22. honour system", whereby, if they needed to take time off, they made it up later, without annotations being made to the worksheets. He said that, after returning from Kiama, he returned to the Archives Office and worked from about 1925 hours to about 2026 hours. He said that he frequently worked overtime without claiming for it. In cross-examination, Mr Lewis said that "To the best of my ability and recoltection I also notify my staff both upwards or down - staff and my OIC including Mr Hoitink whether he was there or not or was left a message. It's more my normal practice. I can't be a hundred per cent sure but it would normally - I would have done that". He agreed that he had previously informed his supervisors of proposed absences. When asked, specifically, if he had notified his supervisor, Mr Hoitink, on 31st July 1996, of his proposed absence from duty, Mr Lewis said "To the best of my ability I advised him -- that's alj I can say". Mr Hoitink was not called to give evidence. It seems to me, on Mr Harris' evidence, that the course adopted by Mr Lewis in absenting himself from duty on the occasion in question was not authorised in accordance with the system in operation at the relevant time, I therefore find, on the balance of probabilities, that the second charge is made out.