Commissioner for Police v Warren

[1991] AFPDT 2

IN THE FEDERAL POLICE )

1                   No. FPDT 9 of 1991

-

DISCIPLINARY TRIBUNAL )

BETWEEN :  COMMISSIONER FOR POLICE
Applicant

AND:  MATHEW CHARLES WARREN

Respondent

********

IN THE FEDERAL POLICE )

1                  No. FPDT 10 of 1991

L DISCIPLINARY TRIBUNAL )

BETWEEN :  COMMISSIONER FOR POLICE
Applicant

AUDs GLENN TREVOR PROEBSTL

Respondent

THE PRESIDENT	(FOSTER J)
12 DECEMBER 1991

U	MELBOURNE
THE TRIBUNAL ORDERS:

-3.	that the Commissioner pay the constables	' costs
of these proceedings.

1. that the charges under regulation 18(l)(d) of the Australian Federal Police Discipline Regulations against Constable Mathew Charles Warren be dismissed.

2. That the charges under regulation 18(l)(d) of the Australian Federal Police Discipline Regulations against Constable Glenn Trevor Proebstl be dismissed.

IN THE FEDERAL POLICE	)
1 NO. FPDT 9 of 1991
DISCIPLINARY TRIBUNAL )

-

BETWEEN:	COMMISSIONER FOR POLICE Applicant
AND :	MATHEW CHARLES WARREN

Respondent

IN THE FEDERAL POLICE )

NO. FPDT 10 of 1991

DISCIPLINARY TRIBUNAL ) 1

BETWEEN :	COMMISSIONER FOR POLICE Applicant
AND :	GLENN TREVOR PROEBSTL

Respondent

- (EXTEMPORE )

FOSTER J (PRESIDENT): These proceedings have been instituted before the Tribunal by an acting Deputy Commissioner (the "Commissioner") of the Australian Federal Police against two constables of the force, Constable Glenn Trevor Proebstl ("Proebstl") and Constable Mathew Charles Warren ("Warren").

The proceedings allege disciplinary offences against each

constable. The aliegations are closely related and the. ~=
proceedings have been heard together. Each constable has been
represented by the same counsel.

In each case the constable is alleged to have committed a series of breaches of regulation 18(l) (d) of the Australian Federal Police Discipline Regulations, in that he was guilty of disgraceful conduct in his official capacity in knowingly making false statements in a statement prepared and

b	answered to a direction given under S 7 ( 5 ) of the !2om~laints JAustralian Federal Police) Act 1981 (Cth) by Detective Superintendent Hicks, and knowingly giving false answers in response to questions put under a like direction by the same officer. These breaches are in each case alleged to have occurred on 6 January 1989.
Each constable is further charged with breaches of the same regulation in that he gave knowingly false answers to
L	questions put to him under a similar direction by another
breaches were alleged to have occurred on 3 April 1990. senior officer, Detective Superintendent Hepworth. These
The uncontested background of these allegations as it appears from the evidence before the tribunal may be stated shortly as follows: On 11 November 1988 both constables were performing duty at Melbourne headquarters. Warren had been a member of the Australian Federal Police for only eight months and was -€hen a probationary constable. Proebstl was also

fairly junior. He had completed all basic training and hacl	=
been on the force about three years. On that day Sergeant Barnes, who was in charge of them, gave them a job to perform. He saw it as a suitable task to be entrusted to Warren as an adjunct to his training. Proebstl, although senior, was to be in effect the off-eider. In the range of work performed by
the Australian Federal Police it was a fairly minor task but I
am satisfied on the evidence that it was novel work for both
of these young men. It was what has been called in the evidence a response job. A complaint had been received from an officer of the Department of Social Services that a man called Stojanovski had misbehaved seriously in the Preston office of the department the day before. He was an unemployed person; he was dissatisfied at some answer he had received from an officer of the department in the office. He had apparently lost his temper and spat at the officer in question and then severely damaged a notice board by punching it. The constables were instructed to interview Mr Stojanovski at his place of residence and take what action was deemed
appropriate.

The constables went to Stojanovski's address at Preston. There was a conversation in which Stojanovski made admissions as to his behaviour the day before. He was then taken in the police vehicle to headquarters in Melbourne and a formal interview was then taped. The record of this interview is not in evidence but it appears that the admissions were adhered to. Indeed Mr Stojanovski subsequently pleaded guilty

before a magistrate to charges of offensive behaviour and -	-
malicious damage to property. A£ ter the interview was completed he was driven home by Warren and another constable not involved in these proceedings. Apparently he left the vehicle before he reached his residence in circumstances which have not been the subject of evidence.
On 21 December 1988 he made a formal complaint to the internal investigation division of the Australian Federal

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Police, in the following terms:

a)	That on 11 November 1988 the complainant's home was unlawfully entered by Constables Proebstl and Warren.
b)	That he was searched in the street thus causing him embarrassment.
c)	That he was assaulted in the police vehicle.

These complaints were promptly investigated by
Detective Superintendent Hicks who interviewed Mr Stojanovski

and also Proebstl and Warren. On 6 January 1989 he obtained

the statements and conducted the recorded interviews with the

constables to which reference has already been made. As a

result of these investigations it was apparently decided that Stojanovski's complaints could not be sustained. No further action was taken in respect of those complaints.

However, this was not the end of the matter as far
as the constables were concerned. Apart from the statements
and record of interview which' they had supplied to Detective

Superintendent Hicks, they had also made official diary -
entries in relation to their dealings with Stojanovski and had
also provided statements to be part of the prosecution brief
in respect of the charges against him. Discrepancies between
aspects of these documents and the statements and responses
given to Detective Superintendent on 6 January 1989 apparently
excited further suspicions in the minds of relevant members of
the internal investigation division and apparently in the
Ombudsman's office. As a result of these suspicions further
questioning of the constables under direction pursuant to
section 7 ( 5 ) of the complaints Australian Federal Police Act
1981 was performed by Detective Superintendent Hepworth. This
occurred on 3 April 1990, some 15 months after the previous
interview with Detective Superintendent Hicks. It is alleged
that certain answers given by each of the constables in these

interviews were knowingly false.

Although the documents setting out the charges

against each constable referred to specific words in the

statements given by them and specific answers given by them in
the recorded interviews, the gravamen of all charges may be

stated shortly. It is alleged that wherever either constable stated or answered, either directly or indirectly in the relevant statements and interviews that Mr Stojanovski had ,

been arrested at the home in Preston prior to his being brought to headquarters in Lonsdale Street, those statements and answers were knowingly false. It is put on behalf of the ~ommissioiier that the true position is as stated in the

constable's diary and notebooks and in their brief statements for the prosecution. These it may be noted, now, make no mention of an arrest and refer to Stojanovski having come to headquarters voluntarily in answer to a request so to do. It may also be noted at this point that the proceedings against Stojanovski to which he pleaded guilty were, in fact, initiated by summons. A decision by the tribunal that, in fact, there was no arrest of Stojanovski is, of course, critical to the success of the prosecution in respect of all

ii	these charges. Conversely, if the tribunal is satisfied that an arrest occurred, then the prosecution must necessarily fail. This must be so whatever standard of proof is required of it.
It should be stated at the outset that both constables put their character in issue and called evidence of good character and reputation. It is clear that since these events at the end of 1988 both have embarked on distinguished
b	careers in the Australian Federal Police. Detective
whom he had worked in the special crime squad in Melbourne, the case, stated, quite unequivocally, that Proebstl, with Superintendent Hicks, who gave evidence on the main issue in
had been found by him to be a very polite and likeable and a good style of police officer. He said that his work standard . was of a high degree and he always portrayed a very professional image. He indicated that Proebstl had played a significant role in Australia's first computer hacking prosecution. This investigation involved him being sent

overseas to liaise with the Federal Bureau of Investigation, a-	-
task he would not have been entrusted with were it not for his perceived high professional standards. Also, he had been part of a joint investigating team with the Royal Canadian Mounted Police into two murders in Winnipeg, Manitoba. Both he and Warren had been involved and both had received high praise from the Canadian authorities and the Canadian judiciary. He had never had cause to doubt the honesty of either constable and they had appeared to answer his questions honestly. He had a similar view of Warren's honesty and professionalism. There was also tendered in evidence, as exhibit 2, a letter from the Crown Law offices in Manitoba praising Proebstl and Warren along with other federal police officers for the professional standard of their work in relation to the Canadian case, which had involved them giving evidence before judge and jury.
Sergeant Barnes, who also gave evidence on the issues in the case and who has worked with both constables,
also gave evidence as to his high regard for their professionalism and honesty. As these charges impugn in a	serious way the honesty of each constable they are each
entitled that the tribunal bear in mind this evidence of their character and reputation.

I should also state that both constables gave

evidence before me. Iwas impressed by the demeanour of each,

both in fhe giving of evidence-in-chief and under ,vigorous

cross-examination. I formed the view that each was an honest and truthful witness, a view which would yield only in circumstances where other evidence in the case necessarily required a different conclusion.

Proebstl gave clear evidence that he had effected an

arrest of ~tojanovski at the Preston premises. In this he was

not corroborated by Warren. I shall refer to this aspect of the case later. I am invited by the prosecution to reject

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Proebstl's evidence of arrest on a variety of grounds.

It is put that the suggested arrest was a concoction, an after-thought to provide an answer to Stojanovskils allegation that he had been improperly submitted to a compulsory search, a pat search in a public area outside his home. The statement of Proebstl to Detective Superintendent Hicks of 6 January 1989 makes the assertion that he was searched pursuant to powers flowing from his

'W	arrest. This submission could have some cogency if the
unauthorised search. However, I am quite satisfied that this evidence indicated that, in fact, Proebstl asserted the arrest only when confronted with this allegation of assault by way of
was not so. I am satisfied from the evidence of Sergeant Barnes, whom I accept as a witness of truth and a policeman of many years' experience, that Proebstl told him of the arrest when reporting on the matter to him a couple of days later.

- . - .

Indeed, I am satisfied that he was castigated by

Sergeant Barnes for performing what has been referred to in	-=
the evidence as an un-arrest, that is, for releasing Stojanovski from custody after the arrest had been made. I shall refer to this matter later. I do not accept, therefore, that Proebstl simply made up the story of arrest for the suggested self-serving purpose.
It is also put that the circumstances demonstrated no need for an arrest with the result that I should reject the assertion that one was made. I do not accept this submission. I am satisfied that Proebstl had in mind that the law required that no arrest be made where procedures by way of summons would suffice. Also it is clear that the alleged offence was not so serious in itself as to warrant arrest in any event. However, the facts as reported to Proebstl indicated that Stojanovski had behaved in a most unsavoury way and had also reacted in a violent manner. Those facts led Proebstl, he said, to form the view that Stojanovski might have little respect for authority. I think this was a reasonable prima
this view. Stojanovski was aggressive in his manner and also	interviewed Stojanovski at his residence he was reinforced in facie assumption to make. Proebstl further says that when he	flippant in relation to the general situation of being interviewed by police officers in regard to these offences.
In fact he readily admitted the offences and sought to justify them on the basis that departmental officers have not shown'. him proper respect. This attitude of Stojanovski

and his apparent emotional instability, according to Proebst1,-

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led him to the view that he may not obey a summons and that an arrest should be made. I am not prepared to reject this evidence. Stojanovski gave evidence before me. He was strange in his behaviour. His manner and demeanour indicated a scant respect for authority. I am not concerned here with the propriety or impropriety of the arrest. I am, however, satisfied that Proebstl genuinely thought it was appropriate that an arrest be made.

L.

It is also put that I should find that no arrest occurred because Proebstl, after recording an interview with Stojanovski at headquarters, allowed him to leave after telling him the matter would be reported. This is the un-arrest referred to in the evidence.

This does, of course, furnish some evidence that no

arrest was made and that Proebstl had simply intended at all

i /	stages to record an interview after cautioning Stojanovski and
Proebstl says that, in effect, he thought better of the arrest then report the matter with a view to a summons being served.
when he got more material from Stojanovski in the recorded interview. He then formed the view that Stojanovski had a sufficiently stable domestic situation, was not necessarily a transient and would probably answer a summons. Having come to this conclusion he decided to release him from custody. I am not required in these proceedings to consider the legality or propriety-'of this course. This is not an issue in the case.

Detective Superintendent Hicks thought it a most unusual -

course to follow. However, he obviously accepted that it had occurred. Indeed, he did some independent research on the topic to see if there was any precedent for it. Sergeant Barnes says that he regarded it as most unusual and unprofessional. He says that it was his view that once the arrest had been made, the normal procedure of charging before a magistrate and a consideration of bail should have been followed.

Both Proebstl and he say that Sergeant Barnes expressed this view to Proebstl in no uncertain terms. The sergeant further says that, as a form of expressing his disapproval in a fairly summary way, he took the matter out of Warren's hands and gave the job to Proebstl to complete by way of following the procedure for a hearing after service of summons. sergeant Barnes gave quite detailed evidence about these matters. I have been invited on behalf of the Commissioner to reject his evidence. I could do so only on

the basis that he was deliberately lying to the tribunal.

There could be no question of mistake. Sergeant Barnes is a policeman of many years experience in this country and in England. I should state quite plainly that I do not consider that he was lying to me. Indeed, I regard him as a witness of truth. I consider that it was unfortunate that his veracity was attacked in this way especially as it is plain that he had never been approached by the investigating unit to

see if he, as the sergeant in charge at the relevant time,	-
could throw any light on the charges which were then in contemplation.
I am satisfied by the sergeant's evidence that Proebstl told him that he had arrested Stojanovski before Stojanovski made any formal complaint in the matter. I am satisfied on this ground also that the version of arrest was not concocted to answer a portion of that complaint. 1n

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regard to this topic it was also put that Proebstl made no mention of his discussion with Sergeant Barnes when he was interviewed by Detective Sergeant Hepworth. This interview took place, as I have already said, 15 months after the event.

I have, in the course of the proceedings, voiced some

criticism of the fact that the direction involved referred only to the original complaint and not to the allegation that Proebstl had made a false statement.

I am not prepared to draw any adverse conclusion The complaint in itself did nothing to focus his attention on from the fact that he made no mention of this conversation.

the matter that was being then investigated. It was further

put that the absence of any reference to the arrest in the diary note and note book of the constables was strong evidence that no arrest had occurred. It is not precisely clear when these entries were made. It may well be that they occurred after the discussion with Sergeant Barnes. The possibility is at least -raised in the evidence that the reference to arrest

was omitted on the basis that the less said about the -
abandoned arrest the better.

However, the constables are not charged with any impropriety in relation to these documents and it is not appropriate to consider that question any further. In any event the constables have sworn that the omission was the result of honest error. In view of their excellent character, I am not prepared to disbelieve them in this matter on their oaths.

It is further put that the omission of any reference to the arrest in the statements prepared for the court briefs is potent evidence of the fact that no arrest occurred. It is asserted on behalf of the Commissioner that such a fact would and should be included in such documents. I have no evidence as to this. It was on the constables' case' an unusual situation. Although an arrest had occurred it had been abandoned and a procedure by way of summons instituted. It is

at least debatable in my view that reference to the abandoned arrest was not material at least in a case-in-chief. I make	no decision about this.
I am not, however, prepared to make the inference of guilt which the Commissioner submits I should make from these facts. It is also at least possible that these statements were prepared after the interview with Detective superintendent Hicks in which case they would be robbed of

evidentiary weight. .- .- ~

It is further put that Warren's latest statement to Detective Superintendent Hepworth in which he made it clear that he did not personally hear or see Stojanovski placed under arrest, but simply accepted what Proebstl told him in this regard, together with his evidence to that effect, suggests strongly that no arrest took place. I do not draw this conclusion.

At the time of the events at Preston, Warren was very inexperienced and junior. He was only 18 years of age. I am satisfied that at that stage he saw no difficulty in simply adopting in his own statement what Proebstl had told him had happened. It would appear that later he realised that he should make this clearer as he did in answer to Superintendent Hepworth's questions. However, I am satisfied that on his evidence Proebstl did tell him of the arrest. Although it is perhaps strange that he did not become aware of

circumstances outlined in the evidence that he simply did not the arrest at the time, it is quite possible in all the	observe it. I consider that his evidence as to Proebstl's
statement to him that the arrest had in fact occurred made shortly after the event should be accepted.
It is also put that the constables should get no assistance from the evidence of Mr Stojanovski. Stojanovski was called quite properly by the prosecution. He gave

evidence that he was arrested by Proebstl and was told on a	-
number of occasions that he was under arrest. I am invited by the commissioner to disregard and reject this evidence on the basis that it is not worthy of credence having regard to the unreliability of Stojanovski.
This submission does not appear to sit well with the submission that Stojanovski should have been regarded as sufficiently reliable to be accorded the procedure of summons rather than arrest. I can see no reason why I should not accept Stojanovski's evidence in this regard. Indeed it accords with what he had previously told Detective Superintendent Hicks.
In the result I am satisfied that Constable Proebstl did in fact effect an arrest of Stojanovski on 11 November	I
1988. It follows that none of the alleged disciplinary breaches are made out. I dismiss all these proceedings. I also order that the Commissioner pay the constables' costs of
these proceedings.

fourteen (14) pages are a true copy of	I certify that this and the preceding
the Reasons for Decision herein of his Honour M r Justice M. L. Foster, President of the Federal Police Disciplinary Tribunal.
Associate: Date: 12 DECEMBER 1991