Commissioner of Police v Carey

IN THE FEDERAL POLICE )
) No. 5 of 1987
DISCIPLINARY TRIBUNAL 1
COMMISSIONER OF POLICE
Against
KEVIN CAREY
IN THE MATTER of the Comwlaints (Australian

~ederal ~olicej Act 1981.

DECISION

TRIBUNAL : Mr. Justice Jenkinson, Deputy President

DATE : 20 February, 1989
The Tribunal orders that the costs of these preceedings before it incurred by Senior Constable Kevin Carey be paid by the Commonwealth.

........ ........ ........ ....

Deputy President

IN THE FEDERAL POLICE )
) No. 5 of 1987
DISCIPLINARY TRIBUNAL )
COMMISSIONER OF POLICE
Against
KEVIN CAREY
COMMISSIONER OF POLICE
Against
MICHAEL KEITH DUTHIE
IN THE MATTER of the Complaints (Australian Federal Police) Act 1981.

20 February, 1989 MR. JUSTICE JENKINSON -
Deputy President

REASONS FOR DECISION

Each of Senior Constable Kevin Carey and Senior Tribunal of the disciplinary offence of improper conduct in his

Constable Michael Keith Duthie was found not guilty by this

official capacity as a member of the Australian Federal Police. The circumstances are disclosed in the reasons for the Tribunal's decisions in respect of those charges, which were heard together. Each of the members seeks, but the Commissioner opposes, an order that the Commonwealth pay the costs of the proceedings before the Tribunal incurred by the member. The power to make such an order is conferred on the Tribunal by Regulation 7 of the Complaints (Australian Federal Police) Regulations. The power, which is conditioned upon the Tribunal's finding the member of the Australian Federal Police not guilty of the breach of discipline charged in proceedings under s.67 of the Complaints (Australian Federal Police) Act 1981, is discretionary.
Mr. Lorkins opposed the award of costs for the reason
that each member had given in answer to questioning by his
superiors a different account of the events and circumstances out

of which the charge arose to the account he gave in evidence before the Tribunal. It was not submitted that there had been deliberate untruthfulness by either member, but rather that each had failed when first questioned by his superiors to give a sufficiently accurate and comprehensive account of the circumstances under investigation.
Not all of what occurred during the investigation was
given in evidence before the Tribunal, no doubt because not all

was relevant to the particular charges brought before the Tribunal. What was disclosed did not in my opinion establish that

order for payment of his costs. In each case it will be ordered

either member had so conducted himself as to merit denial of an

that the costs of the proceedings before it incurred by the member
charged be paid by the Commonwealth.
I certify that this and the 2 preceeding pages are a true copy of the Decision and Reasons for Decision herein of Mr. Justice Jenkinson Deputy President.

A-

Associate

Dated: 20 February, 1989

CaseChat Overview and Summary

The Federal Police Disciplinary Tribunal heard a case involving Senior Constable Kevin Carey, who was accused of improper conduct in his official capacity as a member of the Australian Federal Police. The Commissioner of Police brought the complaint against Carey under the Complaints (Australian Federal Police) Act 1981. The Tribunal found Carey not guilty of the charge. Carey applied for an order that the Commonwealth pay the costs of the proceedings before the Tribunal, which the Commissioner opposed on the basis that Carey had given inconsistent accounts of the events in question to his superiors and in his evidence before the Tribunal.

The legal issue before the Tribunal was whether Carey's conduct warranted the denial of his application for costs, despite his acquittal. The Tribunal considered whether the inconsistency in Carey's accounts was due to deliberate untruthfulness or an oversight during the initial questioning. The Tribunal concluded that the evidence did not support a finding that Carey had deliberately misled his superiors or that his conduct merited the denial of his application for costs. The Tribunal found that Carey's acquittal justified the exercise of its discretion to order the Commonwealth to pay his costs.

Deputy President Jenkinson ordered that the Commonwealth pay the costs of the proceedings before the Tribunal incurred by Carey. This decision reflects the Tribunal's view that Carey's acquittal and the absence of evidence of deliberate misconduct warranted the award of costs. The Tribunal's decision underscores the importance of providing fair proceedings and ensuring that those acquitted of disciplinary charges are not unfairly penalised with respect to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Each of Senior Constable Kevin Carey and Senior Tribunal of the disciplinary offence of improper conduct in his	Constable Michael Keith Duthie was found not guilty by this
official capacity as a member of the Australian Federal Police. The circumstances are disclosed in the reasons for the Tribunal's decisions in respect of those charges, which were heard together. Each of the members seeks, but the Commissioner opposes, an order that the Commonwealth pay the costs of the proceedings before the Tribunal incurred by the member. The power to make such an order is conferred on the Tribunal by Regulation 7 of the Complaints (Australian Federal Police) Regulations. The power, which is conditioned upon the Tribunal's finding the member of the Australian Federal Police not guilty of the breach of discipline charged in proceedings under s.67 of the Complaints (Australian Federal Police) Act 1981, is discretionary.
Mr. Lorkins opposed the award of costs for the reason that each member had given in answer to questioning by his superiors a different account of the events and circumstances out