Commissioner of Police v Billing

jy7,3b,39

1' 95'] /7FPDT //-

IN THE FEDERAL POLICE

)

Nos . 8, 9 and 10 of 1985

DISCIPLINARY TRIBUNAL

)

THE COMMISSIONER OF POLICE

against

SENIOR CONSTABLE DONALD ROBERT BILLING, SENIOR CONSTABLE PATRICK DAVID LAWand CONSTABLE STEPHEN GRAHAM McTACKETT

REASONS FOR FINDINGS	KELLY J (President)
4 JULY1986

w .

IN THE FEDERAL POLICE

No . 8 of 1985

DISCIPLINARY TRIBUNAL

THE COMMISSIONER OF POLICE

against

SENIOR CONSTABLE DONALD ROBERT BILLING

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

•

O R D E R

THE PRESIDENT (KELLY J)

4 JULY 1986

CANBERRA, A .C .T.

THE TRIBUNAL ORDERS THAT :-

1. Charge No. AFP:1/8586 against Senior Constable Donald Robert Billing (the respondent) be dismissed.

2. The Commonwealth pay the respondent's costs of and incidental to the charge .

IN THE FEDERAL POLICE

No . 8 of 1985

DISCIPLINARY TRIBUNAL

THE COMMISSIONER OF POLICE

against

SENIOR CONSTABLE DONALD ROBERT BILLING

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

•

F I N D I N G

THE PRESIDENT (KELLY J)

4 JULY 1986

CANBERRA, A .C .T.

THE TRIBUNAL FINDS THAT Senior Constable Donald Robert Billing is not guilty of the disciplinary offence alleged in Charge No . AFP :1/8586, namely,

That he, a member of the Australian Federal Police, was guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, namely, improper conduct otherwise than in his official capacity, in that at Brisbane in the State of Queensland on 21 November 1984, he assaulted Brett Damien KUNKEL .

IN THE FEDERAL POLICE

)

No . 9 of 1985

DISCIPLINARY TRIBUNAL

)

THE COMMISSIONER OF POLICE

against

SENIOR CONSTABLE PATRICK DAVID LAW

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

O R D E R

THE PRESIDENT (KELLY J)

4 JULY 1986

CANBERRA, A .C .T.

THE TRIBUNAL ORDERS THAT :-

1. Charge No. AFP:2/8586 against Senior Constable Patrick David Law (the respondent) be dismissed.

•

The Commonwealth pay the respondent's costs of and incidental to the charge .

IN THE FEDERAL POLICE

No . 9 of 1985

DISCIPLINARYTRIBUNAL

THE COMMISSIONER OF POLICE

against

SENIOR CONSTABLE PATRICK DAVID LAW

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

•

F I N D I N G

THE PRESIDENT (KELLY J)

4 JULY 1986

CANBERRA, A .C .T.

THE TRIBUNAL FINDS THAT Senior Constable Patrick David Law is not guilty of the disciplinary offence alleged in Charge

No . AFP :2/8586,'namely,

Damien

KUNKEL .

IN THE FEDERAL POLICE

)

No . 10 of 1985

DISCIPLINARY TRIBUNAL

THE COMMISSIONER OF POLICE

against

CONSTABLE STEPHEN GRAHAM McTACKETT

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

O R D E R

THE PRESIDENT (KELLY J)

4 JULY 1986

CANBERRA, A .C .T.

THE TRIBUNAL ORDERS THAT :-

1. Charge No. AFP:3/8586 against Constable Stephen Graham McTackett (the respondent) be dismissed.

The Commonwealth pay the respondent's costs of and incidental to the charge .

IN THE FEDERAL POLICE

)

No . 10 of 1985

DISCIPLINARY TRIBUNAL

)

THE COMMISSIONER OF POLICE

against

CONSTABLE STEPHEN GRAHAM McTACKETT

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

F I N D IN G

THE PRESIDENT (KELLY J)

4 JULY 1986

CANBERRA, A .C .T.

THE TRIBUNAL FINDS THAT Constable Stephen Graham McTackett is not guilty of the disciplinary offence alleged in Charge

No . AFP :3/8586,"namely,

Damien

KUNKEL .

Each of three members of the Australian Federal Police, Senior Constables Donald Robert Billing and Patrick David Law and Constable Stephen Graham McTackett (to whom I will refer as Constable Billing, Constable Law and Constable McTackett respectively), has been charged with a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations (the Discipline Regulations), namely, that he was guilty of improper conduct otherwise than in his official capacity in

S	that at Brisbane on 21 November 1984 he assaulted Brett Damien Kunkel (the complainant) .Each has pleaded not guilty to the charge against him.
The complainant gave evidence that on 21 November 1984 he was a university student living at Flat B, 115 Ferndale Street, Annerley, a Brisbane suburb . He added, gratuitously, that his home address was that of his parents, 10 Bridgeport Street, MacGregor, another Brisbane suburb. He said that his sister was also living at the flat and that his fiancee was staying, but not living, with them.
His sister was, he said, employed at the time at the Department of Housing and Construction in Brisbane . At about 5 p .m . on the afternoon of 21 November 1984 he went to collect her, as he had frequently done, from her place of work, a building known as Australia House, located at 145 Eagle Street, Brisbane . He was wearing at the time, he said, .a clean, freshly ironed, white long-sleeved shirt with the sleeves rolled up, navy blue trousers with 'a . leather belt, black shoes and socks and a gold chain round his neck .

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On reaching Australia House he could not see his sister waiting for him and as he was wont to do in similar circumstances drove down a ramp into the building's basement carpark .

The evidence showed that the ramp began at the southwest corner of the building and proceeded in 'a general southeasterly direction to a point where gates which could be used to bar entrance were located . It then continued for

a short distance in the same direction before turning to the left in a general northeasterly direction . It continued for

S	a very short distance in that direction before debouching into the carpark. A vehicle entering the carpark would
normally have left the ramp travelling in the same general northeasterly direction, keeping on its left a group of nine concrete pillars until it was just short of a row of concrete pillars adjacent to the northeastern wall of the basement . Turning to the right and keeping that row of
pillars on its left it would then have travelled southeast, southwest and northwest around a central group of 18 pillars (three rows of six) until it again reached the foot of the
ramp .
I will call the path I have just described the route . It provided, fairly narrowly, room for two vehicles to pass each other . The spaces between the pillars in the basement were used as parking bays . On the southwestern
side of the basement was a part of the building to which I will refer for convenience sake, if perhaps not quite accurately, as a service area .It included toilets, a

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passage giving access to lifts and fire stairs . A small ramp jutted some little distance from the passage into the route restricting to some small degree the width of the passage available for vehicles driving out . Otherwise the northeastern wall of the service area (it was made, apparently, of Besser brick) formed part of the lefthand boundary of the route . It bore signs prohibiting parking

and standing nearby . There were a number of large rubbish bins located adjacent to the southeastern wall of the service area around the corner from its northeastern wall.

•

The complainant was driving his motor vehicle, a

1971 model Mazda Capella registration number Old . PUT-611

(the Mazda) . He circled the carpark via the route until he

came to a point near the signs to which I have just referred . There, he said, he stopped, with the windscreen of his car approximately under a "No Standing" sign some distance behind a BMW 520i sedan (the BMW) parked in front of him adjacent to the small ramp leading from the passage. It was apparently his custom to park in that general area

•

when waiting for his sister to come from her office.

He said that in parking his vehicle he made no

contact with the BMW but that after he had stopped his car

he noticed the BMW's reversing lights come on . He sounded

his horn once and then sounded it continuously as the BMW

continued to reverse until eventually it ran into his car. The BMW, he said, then moved forward and stopped . He described the driver of the BMW and identified him as

Constable McTackett . Both he and Constable McTackett got

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out of their cars to inspect them . He said that Constable McTackett said, "We should call it quits" . He replied to the effect that they should not call it quits but that he would accept $20 for the minor damage that had been done to his vehicle . Constable McTackett, he said, replied, "No

way" and he then said, "Well that's OK . . . could I see your licence - name - could I get your name, licence and

insurance details" . He believed that Constable McTackett

then said, "Well maybe we should call the police" and that he replied, "Go right ahead" . He then said that Constable

McTackett looked at the fog light which was hanging off the Mazda and said that it would probably work anyway and that the Mazda had had previous damage . The complainant agreed that in fact the car had had previous damage to it.

The complainant said that he then said words to the effect of "That's horse shit, all I'm interested in is either getting your licence details and insurance details or contacting the police" . He then returned to his vehicle to get a pen and piece of card to write down Constable McTackett's name and details of his insurance and licence. He got the card and the pen and walked back to the BMW. At that point two other men, Constables Billing and Law, appeared and got into the BMW . Constable McTackett then began to get into the BMW and the complainant yelled quite

loudly, "This man has just reversed into the back of my car, and now he is trying to leave as if nothing had happened. It's bad form and I want his licence and insurance details ." or used words to that effect . Constable McTackett stopped

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his attempt to get into the car and then there was a

conversation between the three which the complainant could not hear . Constable McTackett tried again to get into the driver's seat of the BMW . The complainant reached in and

removed the ignition key, walked back to the Mazda and threw

the key into its passenger side.

In an interview with Detective Station Sergeant

McEvoy which was conducted on 23 November 1984 and a record

of which became Exhibit U and in his evidence the

•

complainant said he then began to walk towards the lift so that he might gain access to a telephone on the ground floor of the building but had not taken more than a couple of steps before he realised that the three men were walking towards him . He assumed at the time that they wanted to get the key back . He got back into his car and wound up the two front windows and locked the driver's side door . He then

started the Mazda, intending to drive to street level so

that he might make his telephone call.

In a written statement, Exhibit T, made no more than an hour and a half later, he said of that incident :-

"I then walked back to my car while they remain stationary, and threw his keys on the passenger side floor, whilst winding up the windows and locking the door . The driver came to my driver's side door, I gunned the engine, the older one jumped into the thoroughfare of the driveway as the ginger one went for one gate ."

One of the men whom he described as the "older of

the three" (I am satisfied he meant Constable Billing)

jumped out into the middle of the route as though to stop

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the car . The other passenger in the BMW, Constable Law, went to the gate. At that point, he said, Constable McTackett was at the right hand side of the Mazda, Constable Billing had jumped into the middle of the route and the other man, Constable Law, had run to the gate and was in the act of closing it . The complainant started his car and drove at Constable Billing in order, as he said, to "call his bluff" . Constable Billing "moved out of the way". (In

starting to move, the complainant had caused his tyres to

screech .)

The complainant then realised that there was not enough room to get out through the gate and that he had no choice but to make a circuit of the route again . Having done that he then stopped a little behind where he had

previously parked . He then got out of the car, locked it and began to walk towards the fire stairs in order to walk up to the telephone . As he did this the three men walked towards him . Two of them, by whom he meant, I am satisfied, Constables Billing and Law, grabbed him, one by each side.

•	He yelled out, "This is assault" or words to that effect. The two men lifted him straight back onto the bonnet of his vehicle .

(Thereafter,

giving

his

evidence,

the

complainant referred to "the man with the gingery-tinged beard", "the older of the three" and "the driver" . I am

satisfied that he meant respectively, Constable Law, Constable Billing and Constable McTackett and will refer to them by name rather than by description .)

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Thereafter, he said, Constable Law hit him in the stomach while Constable Billing struck him on the jaw . He was hit again on the other side of the stomach by someone whom he could not precisely identify although he rather thought it was Constable Billing . Certainly I could not be satisfied, even on the balance of probabilities, that that blow was struck by Constable McTackett .The blows were

struck, he said, with closed fists . He said that he was reeling on the bonnet of the Mazda and one of the blows that he suffered caused him to roll head first over the bonnet

down the left hand side . I did not understand him to have

said that his head struck the floor even though he ended up on the floor . He said that as he hit the ground he was kicked in the stomach . I am not satisfied that this was

so . A kick would, I think, have left more signs than were apparent to Dr Quinn next day . I think, more probably than not, that in the general melee which was taking place he may have been kneed in the stomach as he fell . He was then

hauled up, he said, against the Besser brick wall and held

there by both sides, Constable McTackett holding his right side and Constable Law his left . Constable Billing was facing him . He was struck a number of blows by Constables

Billing and Law and said that he assumed he was struck also by Constable McTackett but I am not satisfied to accept that

assumption as proof even on the balance of probabilities that Constable McTackett struck him . On the whole of the evidence I think it unlikely that he held him either .

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Constable Billing then said, "This is between me and him" and struck him on the jaw and chest . Then Constable McTackett stood aside and Constables Billing and Law grabbed him, walked him around the corner and threw him against some rubbish bins so that he landed back first amongst them . Constable Billing then struck him, he said, in the lower throat near the collar and grabbed him around

the lower throat just above the point where he had just been

struck .

Then Constable Law said twice, "Get into this room . We will sort it out in here ." If the complainant is to be believed, Constable Law was obviously referring to a small room located on the southeastern side of the service area near the rubbish bins . The complainant described it as some sort of storeroom or cleaners' room . Constable Law's suggestion was not adopted . Constable Billing then said that the complainant had tried to kill him and to take out his knees . The complainant replied, "Well, because you were facing me it would have been an obvious thing to move ."

Constable Billing then hit him in the stomach.

Thereafter, Constable Billing told him to settle

down, using words to the effect of, "Let's settle down ; take

this calmly ." One of the others, the complainant thought it was Constable Law, asked the complainant what his name was. Constable Billing said, "We'll do this without names ." There was some further conversation and movement but the altercation between the complainant and the three Constables was complete at that stage . Subsequently, the complainant,

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when looking at the driver, said, "I'm sorry, I apologise.

I am sorry to have inconvenienced you ."

The complainant also said that Constable Billing said to him, "This is Commonwealth property, and I am a Commonwealth Police Officer ."

After some time Constable Billing, who had learnt

from the complainant of his intention to pick up his sister,

said,

"As much as we would like to exchange addresses and all of that, we are in a great hurry. You must agree that what has happened here this afternoon could have been a lot worse . We would have liked to have finished you off, and you must agree that you have got off very lightly ."

The last the complainant saw of the three police officers was when they were walking towards their car to leave . He caught the lift to the ground floor where he saw his sister and her friend, Lynette Gaye Wolter . He told

them to go into the street where he would pick them up . He returned to the basement by the fire stairs or lift, he could not remember which although he rather thought it might have been via the fire stairs . He drove out of the

basement . He picked up his sister and, he said, only his

sister and drove to her flat at Annerley . He was then, I am satisfied, upset and angry . When he got to the flat he spent something like an hour writing out a detailed statement of what had occurred .The statement, together with some explanatory points, became Exhibit T.

He then drove to his home at MacGregor where he

told his father what had happened . His father contacted an

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officer of the Australian Federal Police, Sergeant Pyle, at the Brisbane Airport and this contact led in due course, after appropriate investigation, to the charges I am considering.

Each of the three officers charged was required, under s.7(5) of the Complaints (Australian Federal Police) Act 1981, to make a report concerning the incident involving the complainant . Each furnished a report and was subsequently interviewed . A tape recording was made of each of the interviews. The reports and transcripts of the

•

recordings were eventually tendered in evidence . As well, the three officers collaborated on the evening of 21 November 1984 in the making of a statement which was recorded by Constable Billing in his official notebook. Constable McTackett later made a separate statement dealing with that part of the incident said to have occurred before Constables Billing and Law arrived on the scene .Both

statements were * tendered in evidence .

Each of the three

officers gave evidence and was cross-examined.

•

The relevant pages of Constable Billing's notebook

became Exhibit H and a transcript thereof Exhibit H1 . His

report became Exhibit J and the transcript of the tape

recording of the interview with him became Exhibit G.

The report made by Constable Law became Exhibit Q and the transcript of the tape recording of the interview with him became Exhibit L.

Constable McTackett's report became Exhibit N, the

transcript of the tape recording of the interview with him

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became Exhibit 0, while the statement he made on the evening

of the incident after his collaboration with Constables Law

and Billing became Exhibit R.

Two days later Constable McTackett made a report of the accident to the Officer-in-Charge, National Crimes Squad . Attached to the report were three copies of a completed form known as the "Driver's Report of Accident" apparently used in the Transport and Storage Division of the Department of Administrative Services . A photocopy of the report to the Officer-in-Charge of the National Crime Squad and a copy of the Driver's Report of Accident together became Exhibit P.

The three officers gave a much different account from that given by the complainant.

It is common ground that the collision, however

caused, took place when Constables Billing and Law were not

in the basement carpark . It is necessary, therefore, to go

first to Constable McTackett's account . It is conveniently

set out in Exhibit R which said :-

"WED. 21/11/84 1715 HRS . Stationary in Brisbane HQ basement in BMW BYL-064 (Vic) there for 3-4 mins . Felt slight bump to rear of car . Saw white Mazda in rear vision mirror . Inspection of rear BMW right blinker lens broken . Male driver of Mazda also at rear of BMW and front of Mazda.

I said . 'What happened?'

He said 'You reversed into me .'

I said 'I was stationary how could .I back into you . What is your name?'

He said 'I'm not saying give me $20 to fix the damage .'

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I said 'I'm not paying you $20 .	I'll call
the police .'

He said loudly 'No I don't want the police, give me $20 that should fix the damage .'

I said "I'm not giving you $20 I'll get the police and they can sort it out . What is your name .'

He yelled 'I don't want the police just give me $20 .'

I then walked back to the BMW to obtain some paper and I sat in the driver's seat . The driver of the white Mazda then walked over to the BMW closed the door & stood at the window.

S	At this time Billings & Law returned to BMW. Sat in car . - Notes cont . in Billing's notebook - Informed them of situation ."

Constable Law, giving evidence, adopted that

statement as true and it is consistent with what he said in

his report, Exhibit N, in the interview with the Internal

Investigation Division the transcript of which became Exhibit 0 and in the reports which became Exhibit P . The evidence given by the police officers as to what happened thereafter may be summarised as follows :-

Constable McTackett said to the other two officers

'This bloke has just run into the back of the car and has

busted the tail light . He also claims I backed into him and

now he put it on me for $20 .' Constable Billing said, 'You're joking' . McTackett replied, 'I'm fair dinkum, this bloke's just hit the car but he is happy for me to pay him $20 . I said I will call the police .'

The complainant then reached through the open

window on the driver's side door of the BMW and pulled the

ignition key out of the ignition . He then ran back to the

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Mazda parked behind the BMW. (It is to be noted that by their account the three officers had Constable McTackett seated in the BMW at the time when the complainant took the key out of the ignition while the complainant's version was

that he did not snatch the key until Constable McTackett

"was in the process of hopping into the BMW" .)

Constable Law got out of the rear of the BMW, noticed the complainant get into his motor vehicle and lock all its doors and in consequence ran to the gates and shut the right hand one . Constable McTackett got out of the BMW and walked to its rear while Constable Billing got out and walked around the front of the BMW . He then saw the complainant reverse the Mazda causing the rear wheels to squeal loudly . There followed the incident where Constable Billing was forced to jump out of the path of the Mazda and the Mazda completed a circuit of the route, its wheels making an audible noise on the turns . Its estimated speed around the route was 20 kilometres per hour (I am satisfied on all the evidence including the complainant's that he drove at 15 kilometres per hour at least).

When he stopped the complainant got out of the

Mazda quickly and slammed the driver's door . He appeared to

be in a .highly excited state and began to shout at Constable

Billing who approached him. The complainant, according to ConstableBilling,"lungedatmewithhisarms outstretched" . Constable Billing then seized him by the front of his shirt . The complainant began to struggle and

the two overbalanced and fell against the bonnet of the

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Mazda . Constable Billing shook the complainant and shouted for him to calm down

. The complainant seemed to respond

slightly to the request

. Constable McTackett also said

"settle down". The complainant continued to struggle and Constable Billing was able to propel him against the northeastern wall of the service area. On any account he seems to have struck that wall a fairly solid blow and, according to Constable Billing, all the fight went out of him. Constable McTackett then approached him and Constable

Billing said, "It's all right, just leave us".

The statement, Exhibit H, continued :-

" I said : 'Come around the corner I want to talk to you .' The male person then proceeded to the area near the black garbage bins . I said : 'Just calm down .' (Senior Constable LAW and Constable McTACKETT then moved to the other side of the Mazda opposite me .) I then had a further conversation with the male person . I said : 'Calm down and stop carrying on . You have just tried to run me down . You have almost turned a minor traffic accident into a major incident by trying to run me down .Calm down and think what you have done . You were driving on Commonwealth property in a carpark . You have been driving dangerously and have almost knocked down a Federal Policeman . You are lucky you did not hit me and a major incident has occurred. Take a deep breath and calm down .' The male person then appeared to be much calmer and responded to me . I said : 'Are you calm now. Do you want to talk . . . about this calmly and sensibly .' He said ; 'Yes, I'm sorry I went off.' I said : 'Come over here and we'll talk about it .' He said : 'Yes all right' ."

On the officers' version there could have been no assault on the complainant by either of Constables Law and McTackett and the action which Constable Billing concedes that he took would, it seems to me, have been justified as self-defence .

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I am satisfied that the complainant did apologise

for his actions and that, pressed, he conceded that he had

run into the back of the BMW . On the face of it this would appear to exonerate Constable McTackett from any responsibility for the collision . However, I accept that he agreed that he had run into the back of the BMW for fear of the further blows he might receive.

Criticism was levelled against the complainant as

a witness but I thought his evidence generally credible . It

is true that he impressed as a rather arrogant, self-centred

O	young man, one who would seek to put the best complexion on any incident in which he was involved . There were some inconsistencies in his evidence . It was true also that some
episodes in his past indicated that he was prepared to be dishonest on occasions . On the other hand, references were
tendered on behalf of Constables Billing and Law . They did not, in my opinion, constitute evidence of general reputation such as would normally found evidence of that good character which leads to the presumption that a person of that character who is charged with a crime is incapable of committing it . R. v . Rowton Le & Ca 520 ; 169 E .R . 1497, Attwood v . R . 102 C .L .R . 353 at p .359 and R . v . Simic 144 C .L .R . 319 . Nevertheless, I was invited by counsel for the Commissioner to treat the references as evidence of good character and I accord them that status.
I am satisfied beyond reasonable doubt that Constable Billing struck the complainant a number of blows and that at one stage he grasped him by the throat . The

,•

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injuries the complainant sustained were inconsistent with mere grasping of the complainant's shirt, no matter how firmly . I am also satisfied that Constable Law struck the

complainant at least once . I am not satisfied that Constable McTackett had any physical contact with the complainant at all . I think that the complainant tended to make assumptions regarding Constable McTackett's part in the alleged assaults rather than describe directly what he actually saw . His evidence on these points was not enough to satisfy me beyond reasonable doubt as I am required to be

•

satisfied that Constable McTackett assaulted him . I am unable to find him liable because of common purpose . I do not find that to have existed.

The basic reason that I am satisfied beyond reasonable doubt that the complainant was struck by Constables Billing and Law is that I accepted the complainant as having told the truth about these matters although I am not satisfied that he did not engage in some pardonable exaggeration . His conduct, taken as a whole, was

•

also consistent with that of a man who had been treated as

he claimed.

I have also taken into account the medical evidence of the injuries sustained by the complainant, injuries which, in my opinion, are quite consistent with those which might have been expected from the physical contact complained of but not, as I have indicated, with that admitted by Constable Billing . In particular, I am satisfied that the injuries to the complainant's jaw, throat

_17_

and abdominal area were consistent with his having been struck blows with a clenched fist on jaw, throat and abdomen and having been seized around the throat.

I am also satisfied that the complainant's account of what happened when he was taken into the area near the rubbish bins is correct . Conviction attached to his account of what Constable Law said concerning the possible use of the small cleaners' room . That had the ring of truth . I am satisfied, too, that eventually the officers were identified as "Commonwealth Police Officers" before reference was made

•

to their membership of the Australian Federal Police . Such a description is entirely consistent with its use in conjunction with the description of Commonwealth property given at the same time.

I accept the account of the complainant rather than that of Constable McTackett concerning the collision. It is to be remembered that at all times until they so identified themselves the complainant had no idea that the

men with whom he was dealing were police officers . It would pass comprehension that he would attempt so brazenly to blame another in respect of a collision he had negligently

caused .

The complainant also admitted freely to his

driving in what was in my opinion a dangerous manner . I do

not think he could have stopped or turned aside as he said he could have to avoid hitting Constable Billing had

Constable Billing not moved out of his path .

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I am satisfied that the complainant gave accurate

evidence concerning a search which Constable McTackett

instituted for a card upon which the complainant had

attempted to write details of the BMW's registration number.

I also accept that it is highly improbable that

three police officers, one of whom had been subjected to

serious assault by motor vehicle and another of whom had

been brazenly blamed for a collision when he was not

responsible for it, would have acted in the way they did if the version they gave of the initiating incidents was

•

correct . On their own evidence I am satisfied that they did not give their names to the complainant . Men, particularly police officers, acting righteously, conscious of their innocence, do not act in that way . It was not until some

time later that they collaborated in giving through Constable Billing and Constable McTackett their version of what had . happened . I am satisfied that they did this only when they finally appreciated that they could not hope to avoid explaining in some fashion the damage which

had been done to the BMW which had been hired for Australian

Federal Police purposes and were at risk of having a complaint made against them . I rather think their fairly moderate consumption of alcohol may have had something to do with their actions and initial lack of perception.

I am not satisfied that any particular injury was caused the complainant by the blow or blows struck him by Constable Law while I am satisfied that the violence offered him by Constable Billing caused the injury to his throat

4 b

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and, probably, the injury to his jaw and abdomen. Those injuries, although described by Dr Quinn as minor (and at one stage as very minor), nevertheless, in my opinion, constituted actual bodily harm . That violence went, I think, well beyond that confessed to by Constable Billing.

That, however, is not the end of the charges . The alleged offences took place in the basement of a building which was, I am satisfied, Commonwealth property . No direct evidence was given as to this but there was evidence that the building was known as Australia House and that it was

•

occupied by Commonwealth Government Departments or bodies, such as the Australian Federal Police . There is no suggestion that there were any other occupants.

Accordingly, under s .4 of the Commonwealth Places

(Application of Laws) Act 1970, the provisions of the laws

of Queensland as in force at 21 November 1984 applied in accordance with their tenor in relation to the basement carpark in Australia House . If I be wrong in the view that that basement was a Commonwealth place the ordinary law of Queensland would have to be applied . In either event, the

law to be applied is that of the State of Queensland, in particular, the relevant provisions of the Queensland Criminal Code Act 1899 . The provisions relevant to the matters I am considering are ss . 268, 269, 271, 273 and 328A .

Section 328A of the Code prohibits the dangerous

driving of a motor vehicle in a public place . As I have

already indicated I think that the complainant engaged in

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dangerous driving when he drove the Mazda at Constable

Billing to "call his bluff" and continued around the route at the speed at which he did . I am satisfied that the basement carpark was a public place within the meaning of the section . It was open to access by the public by the tacit consent or sufferance (at the least) of the owner. The section provides that an offender may be arrested without warrant.

The other sections referred to read :-

"268 . Provocation . The term 'provocation',

•

used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person wh is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality .

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269 . Defence of provocation . A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool ; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to indice him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact ."

"271 .

Self-defence against unprovoked

assault . When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended . from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm ."

"273 . Aiding in self-defence . In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person ."

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I am satisfied that what Constables Billing and Law did to the complainant constituted assaults within the meaning of s .245 of the Code unless they could be authorised, justified or excused by law . See s.246.

Counsel for Constables Billing and Law did not, of course, concede that Constable Law required any authorisation, justification or excuse for, on his evidence, he was entirely innocent . On the other hand, because of the

physical contact between Constable Billing and the complainant, it is necessary to consider whether Constable

Billing was authorised, justified or excused by law in the

circumstances.

In my opinion the proceedings against each of the accused are so akin to proceedings against them for criminal offences that I should take into account the views expressed in Pemble v . The Queen (1971) 124 C .L .R . 107 . At p.118,

Barwick CJ said :-

"Here, counsel for the defence did not merely not rely on the matters now sought to be raised ; he abandoned them and expressly confined the defence to the matters he did raise . However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused ."

At p. 133, Menzies J said :-

counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence . The judge must submit that defence to the jury . Even less can counsel concede a matter of law to the disadvantage of the accused ."

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At p.139, Windeyer J said :-

" . . . this appeal cannot depend upon the form which advocacy took or upon the issue counsel presented to the jury. The issue for the jury was whether the accused was guilty or not ."

See also Greenbury v . Lyon ; ex parte Lyon (1957)

St .R.Qd . 433 .The fact that the officers' evidence in

general precluded the need for the defences of

authorisation, justification or excuse to be taken into account does not, in my opinion, relieve me of the duty of being satisfied beyond reasonable doubt that those matters have been negatived by the Commissioner . Accordingly, in

the circumstances, I must be satisfied beyond reasonable

doubt of the following :-

(a)	that they were not excused as a result of a provocation sustained at the hands of the complainant;
(b)	that they were not acting in self defence or, in Constable Law's case, so that he might be justified, under s .273 of the Code.

I am not satisfied that the Commissioner has

established beyond reasonable doubt, or, indeed, on the

balance of probabilities, that Constable Billing was not

provoked to the point where he dealt with the complainant as he did . There was first the act of dangerous driving

directed specifically at him when the complainant must have

realised that he had had no part in the initial incident and could not reasonably, in all the circumstances, be taken by the complainant to have had a part in the continuation of

any wrongdoing which he might rightfully have attributed to

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Constable McTackett .

To this must be added the

complainant's approach to Constable Billing and, as I am satisfied, to Constable Law . Admittedly, I am satisfied that that approach by the complainant was not intended to constitute an assault or be preparatory to an assault but it indicates to some degree his arrogance that he should think

that, having driven a motor vehicle at a man, that man would not react on his approach when he appeared to be angry and antagonistic towards those facing him . In my opinion the combination of the two things was calculated and likely to

•

deprive any ordinary person of the power of self-control and

to induce him to assault the person by whom the acts were done . I am not satisfied that Constable Billing was not

deprived by provocation of the power of self-control and I

do not think the force he used eventually, having regard to

the relatively short time span during which it was applied,

was disproportionate to the provocation.

I take into account also that, as I am satisfied,

Constable Billing suddenly, on the complainant's evidence,

became quite reasonable in his attitude . This tends to show

that the heat of anger provoked by the complainant's conduct had suddenly passed or at least it constitutes a factor in

my not being satisfied that provocation had not deprived

Constable Billing of the power of self-control.

It follows, therefore, that I am not satisfied that the charge against Constable Billing is made out.

I do not think the defence of provocation has to be negatived in respect of Constable Law .

I ' am not,

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however, satisfied that in the circumstances the

Commissioner has negatived the reasonable possibility that he was acting in good faith in aiding Constable Billing

against an apprehended assault even though, as I am satisfied, that apprehension was a mistake in fact . It seems to me to be reasonable to assume in all the circumstances that it could have been a genuine mistake. That being the case it seems to me that the provisions of s .273 of the Code operate in favour of Constable Law.

It follows that the charges against all three officers should be dismissed . There will be orders accordingly and an order, too, that pursuant to Regulation 7 of the Complaints (Australian Federal Police) Regulations the Commonwealth pay the costs of these proceedings incurred by each officer.

•

Before parting from this matter I should make reference to a statement I made in my reasons for a ruling on jurisdiction which I handed down on 22 January 1986 . In those reasons I said :-

"It is common ground that after completing a circuit of the basement carpark the complainant got out of the Mazda and walked towards the three police officers who in turn were walking towards him ."

As counsel for Constables Billing and Law

subsequently pointed out, in making that statement I was

labouring under a misapprehension as, indeed, appears from

the reasons now given . However, it does not, in my opinion, affect the reasoning by which I concluded that the Tribunal had jurisdiction in all the circumstances .Even if

•

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Constable McTackett was not approaching the complainant at the time when Constables Billing and Law made contact with him, I am satisfied, nevertheless, that he was concerned to

recover the keys which had been taken from his car. Eventually, of course, he did recover them. The misapprehension therefore did not, in my opinion, lead to error and I am satisfied that the Tribunal had jurisdiction to deal with the three charges.

•	I certify that this and the TwENrr1 %V'67

preceding pa•°es are a true copy of the

" DAN`' herein of his Honour

Reasons for

Mr .-Justice

KEU-V

Associate

Dated: ti- Z0c:4 t om,

[1986] AFPDT 4

04 July 1986