Commissioner of Police v Curran

[1989] AFPDT 3

IN THE FEDERAL POLICE	)
) No. 7 of 1988
DISCIPLINARY TRIBUNAL	)

COMMISSIONER OF POLICE
Against
CHRISTOPHER JOHN CURRAN

IN THE MATTER of the Complaints (Australian Federal Police) Act 1981.

27 July, 1989 MR. JUSTICE JENKINSON -
Deputy President

REASONS FOR DECISION

On 24 April 1989 the Tribunal ordered the adjournment until a date to be fixed of proceedings instituted by the Commissioner against Sergeant Christopher John Curran in respect of 5 disciplinary offences alleged to have been committed by

\li Sergeant Curran. On that date my reasons for taking that course were summarily stated and are recorded on pages 53 and 54 of the transcript of that day's hearing. I then indicated that I would later give further reasons for the order of adjournment, and deal with a submission that day made by Mr. Howard of counsel for Sergeant Curran that the Tribunal should entertain and determine an application for an order that the proceedings instituted by the Commissioner be stayed as an abuse of process.

I was informed by Mr. Howard that the disciplinary

charges had their origin in an encounter between Sergeant Curran and members of the Victorian Police Force on 5 September 1987. Mr. Howardfs instructions were that Sergeant Curran and another member of the Australian Federal Police were in a motor vehicle on a public highway in Melbourne when the vehicle was stopped by Victorian police, that the two Australian Federal Police members then went to the Kew Police Station and that Sergeant Curran was charged with 5 offences against Victorian law, which may be colloquially described as assault, resisting police (2 charges),

b	refusing to take a breath test and exceeding the speed limit. On 28 October 1987 Sergeant Curran pleaded guilty to each of the latter two charges and to one of the charges of resisting police before the Magistrates' Court at Prahran, by which he was thereupon convicted and sentenced on those three charges. The other two charges were withdrawn. In respect of each of those three convictions the Commissioner instituted, on 3 August 1988, proceedings against Seargeant Curran for the disciplinary offence, specified by Regulation 18(l)(h) of the Australian Federal Police (Discipline) Regulations, of being found guilty of an offence against a law of a State. On the same date proceedings were also
specified in Regulation 18(l) (g), of acting in a manner likely to instituted against Sergeant Curran for the disciplinary offence,
bring discredit to the reputation of the Australian Federal Police by, as the statement of the charge alleges, his behaviour and use of offensive language to members of the Victorian Police, and for the disciplinary offence, specified in Regulations ll(l)(a) and 18(l)(a), of rendering himself unfit to perform his duties by drinking intoxicating liquor. Those were the 5 proceedings which came on for hearing and determination by me on 24 April 1989. The

two charges which were not founded on Regulation 18(l) (h) were based on conduct alleged to have occurred during the encounter on

5 September 1987.

Mr. Howard's instructions were that between 5 September 1987 and 28 October 1987, when Sergeant Curran was convicted by the Magistrates' Court, conversations took place, on or about 9 September 1987 between representatives of the Australian Federal Police Association and two senior officers of the Australian

L	Federal Police, on 5 October 1987 between representatives of that Association and another officer of the Australian Federal Police named Hicks, and on 28 October 1987 before the proceedings in the Magistrates' Court commenced between Sergeant Currants solicitor and Hicks. Statements were made by those officers, according to Mr. Howard's instructions, that if Sergeant Curran would plead guilty to the three charges to which he did in fact plead guilty and would refrain from laying informations for assault against two Victorian policeman by whom he alleged that he had been assaulted on 5 September 1987, the other two pending charges would be
'W	withdrawn and no proceeding for any disciplinary offence arising
the commissioner against Sergeant Curran. It was in reliance on out of the encounter of 5 September 1987 would be instituted by
those statements, according to Mr. Howard's instructions, that Sergeant Curran had pleaded guilty to the three charges and had refrained from laying any information charging an assault on himself. Mr. Howard submitted that the Tribunal had power, before entering upon the hearing of the disciplinary charges, to determine whether an arrangement of the kind alleged had been made, and power, if the Tribunal found that such an arrangement
had been made, to stay the proceedings instituted by the Commissioner. Mr. Beach of counsel for the Commissioner denied that such a power existed. If, contrary to that submission, the power existed, Mr. Beach submitted that it ought not to be exercised in this case because the decisions of the Commissioner to institute the disciplinary proceedings were administrative decisions susceptible of review under the Administrative Decisions (Judicial Review) Act 1977, an$ review of those decisions by the Tribunal was undesirable.
L
Shortly before the proceedings came on for hearing by the Tribunal on 2 4 April 1989 Sergeant Curran served notice of appeal to the County Court against the three convictions. Section 75(l)(f) of the Magistrates' Courts Act 1971 deems a notice of appeal given more than one month after the decision which is the subject of the notice to be an application for leave to appeal and conditions the power of the County Court to grant leave to appeal on, inter alia, that Court's satisfaction that the failure to give the notice within the period of one month after the decision "was
L	due to exceptional circumstances". Because Mr. Howard informed me
been made between Sergeant Curran and his superiors would be on 2 4 April 1989 that evidence of the arrangement alleged to have adduced before the County Court as a part of the "exceptional

circumstances" on which he would rely in support of his application for leave to appeal, I considered that I should defer the hearing of any application for stay of the proceedings before the Tribunal until the application for leave to appeal had been heard and determined. In the meantime I would determine whether the Tribunal had power to stay proceedings for reasons of the kind

which Mr. Howard was instructed did exist.

On 30 May 1989 Sergeant Curran abandoned his appeals to the County Court. The proceedings before the Tribunal were mentioned on 27 June 1989, when Mr. Howard and Mr. Beach re-affirmed their respective submissions for and against the application that the Tribunal first determine whether those proceedings should be stayed as an abuse of process.

L	I consider first the question whether the Tribunal has power to stay proceedings as being an abuse of its process. The power of a court to make such an order I take to be established, although there may be some room for doubt as to the grounds which will justify the exercise of the power : see Herron v. McGregor
(1986) 6 N.S.W.L.R. 246 at 250-255; Barton v. The Queen (1980) 147
C.L.R. 75; Cooney v. R. (1987) 31 A.Crim.R. 256; R. v. Clarkson [l9871 V.R. 962; The Queen v. Milnes and Green (1983) 33 S.A.S.R. 211 at 224-227. In the first cited of the foregoing cases the New south Wales Court of Appeal left undetermined the question whether
L.	the disciplinary tribunal constituted under the Medical
court is said to have to stay proceedings in that court which are proceedings before it" (6 N.S.W.L.R. at 251). The power which a Practitioners Act 1938 of that State "had jurisdiction to stay the
an abuse of its process is said to be a power inherent in its jurisdiction because necessary to the effectual exercise of that jurisdiction : 6 N.S.W.L.R. at 250. If and to the extent that a similar power were necessary to the effectual exercise of the abjudicative administrative power conferred on a statutorily constituted tribunal, the conclusion that the power to stay
proceedings was available to the tribunal might be drawn, I should suppose, unless the statute by which the tribunal was constituted and its powers and duties were conferred manifested a legislative intention that it should not have that power to stay proceedings.
The Complaints (Australian Federal Police) Act 1981 establishes, in Part VI, the Federal Police Disciplinary Tribunal, makes provision for the qualifications, appointment and terms of tenure of its members and ordains its powers, duties, immunities
L	and procedures with particularity. The Act also makes elaborate provision with respect to the investigation of complaints "concerning action taken" by members of the Australian Federal Police. Unless the complaint is known to have been made by a member of the Australian Federal Police, or relates to action in relation to the employment of members generally or of a particular member (including promotion of, or the payment of remuneration to, a particular member), the complaint is required by provisions in Part 11 of the Act to be made the subject of one or other of several meticulously prescribed investigative procedures. Some of
L	those procedures involve action on the part of the Commonwealth

Ombudsman, the regulation of whose activities in relation to such

complaints is one subject of Part 111 of the Act. Several of

those procedures are required by the Act to conclude, in certain specified circumstances, with a decision by the Commissioner whether or not to institute proceedings against the member who is the subject of the complaint in respect of a disciplinary offence under the Australian Federal Police (Discipline) Regulations. In the Act the meaning of the expression "action taken by a member" is limited by s.4 of the Act to "action that a member takes or

purports to take,

(a) by virtue of his being a member, or

(b) in the exercise of powers, or the performance of functions, conferred on him in his capacity as a member by this ~ c t or by another law,

whether or not the taking of the action is within, or is incidental to the perfoimance'of his duties". It is only in relation to action of that description that the Act applies. In

U exercise of powers conferred on him by ss. 13 and 14 of the Australian Federal Police Act 1979 the Commissioner has made orders (known as General Orders) with respect to the general

1. administration of the Australian Federal Police. General Order 6

l	of those orders makes elaborate provision for the procedures to be
1	followed in relation to complaints about the behaviour of members
l
in relation to which the Complaints (Australian Federal Police) Act 1981 does not apply. Those procedures may in certain
l
i	specified circumstances culminate, General Order 6 provides, in a
/
1	decision whether or not to institute proceedings against a member
P	for a disciplinary offence under the Australian Federal Police
l
i	(Discipline) Regulations.
l
l
In Part V1 of the Complaints (Australian Federal Police) Act 1981 the distinction is maintained between procedures which precede the institution of disciplinary proceedings and which are ordained by Parts 11 and 111 of the Act and procedures which are not ordained by either of those Parts. Section 3(4) of the Act provides that references in the Act to "prescribed regulations"

shall be construed as references to such regulations made under the Australian Federal Police Act 1979 as are declared by the regulations made under that Act to be the prescribed regulations. ~egulation 3 of the Complaints (Australian Federal Police) Regulations declares the Australian Federal Police (Discipline) ~egulations to be the prescribed regulations for the purposes of sub-section 3(4) of the Complaints (Australian Federal Police) Act

1981. In Part V1 of the Act there are conferred on the Tribunal, by ss. 68 and 69, the power and duty to hear and determine appeals

C against certain decisions of the Commissioner made in proceedings held before him in relation to disciplinary offences. BY sub-section 67(1) it is provided:

"Where proceedings are instituted by the Commissioner .against a member under the prescribed regulations in respect of a breach of discipline -

(a)	as a result of an investigation of a complaint that was referred to the Commissioner by the Ombudsman; or
(b)	as a result of an investigation of a complaint that was referred to the Investigation Division under section 6, not being a complaint made by a person known to the Commissioner to be a member,
not accepting a caution) the proceedings shall	(whether or not also as a result of the member
be heard and determined by the Disciplinary Tribunal."

~ h u s proceedings which are instituted in consequence of an investigation ordained by provisions in Parts I1 and 111 of the ~ c t must be heard and determined by the Tribunal. By contrast, sub-section 67(2) provides:

"Where proceedings (other than proceedings to which sub-section (1) applies) are instituted by the Commissioner against a member under the prescribed regulations in respect of a breach of discipline and the member concerned does not admit the truth of the matters alleged to constitute the breach of discipline, the proceedings shall be heard and determined by the Disciplinary Tribunal -

(a)	if the member requests the Commissioner, in writing, that the proceedings be so heard and determined; or
(b)	if the Commissioner determines, in writing, that it would be desirable for the proceedings to be so heard and determined. "

The Australian Federal Police (Discipline) Regulations make provision, in conformity with those two sub-sections, for the institution by the Commissioner of proceedings against a member in relation to a disciplinary offence by service on the member of a notice in terms appropriate to whichever of the sub-sections governs the proceedings : see Regulations 19 and 19A. (Because a copy of the notice is filed in the Registry of the Tribunal, I am aware that the proceedings against Sergeant Curren are governed by sub-section 67(2).)

ti

Proceedings instituted under sub-section 67(1) will have been preceded by the taking of a decision by the Commissioner, in compliance with requirements imposed on him by sub-sections 11(2) and 11(3), as to whether the member charged should be charged. Other provisions of that section may operate to produce the result that, although the Commissioner institutes the proceedings he does so, not in execution of his own decision, but at the direction of the Attorney-General : see sub-sections (4), ( 5 1 , (6) and (7) of

S . . Proceedings instituted under sub-section 67(2) will have been preceded by the taking of a decision by the Commissioner, which Regulation 19(1) of the Australian Federal Police (Discipline) Regulations authorises him to take when it appears to him that a member may have committed a disciplinary offence, whether or not to institute those proceedings. Regulation 19(1) provides :

"Where it appears to the Commissioner that a member may have committed a disciplinary offence, the Commissioner may, if he thinks fit, institute proceedings against the member in relation to the disciplinary offence by causing a notice to that effect to be served on the member. "

The decisions which that Regulation authorises, and those decisions which are made in compliance with sub-sections ll(2) and 11(3) of the Act, are in my opinion decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies. The legislative scheme which the Complaints (Australian Federal police) Act 1981 enacts, and to which a number of the provisions

L of the Australian Federal Police (Discipline) Regulations, complementary, includes a precise definition of the adjudicative	although made under the Australian Federal Police Act 1979, is
disciplinary functions to be performed by the Tribunal in relation to charges which arise out of the observance of the elaborate investigative and consultative processes ordained by the Act. Questionable conduct of members of the Australian Federal Police outside the operation that Act is also the subject of a detailed legislative scheme which that Act, the Australian Federal Police
7 Act 1979, the Australian Federal Police (Discipline) Regulations

and General Order 6 constitute. Neither a consideration of each scheme separately nor a consideration of the two schemes in combination gives ground for thinking it likely that a necessity might arise to recognise an inherent power in the Tribunal to stay any of the proceedings it is directed by the Act to hear and determine in order to protect itself from abuse of its adjudicative processes. The procedures in accordance with which

l	the institution of those proceedings is resolved upon are prescribed by enactments, decisions under which are subject to .
l L	judicial review by virtue of the Administrative Decisions
(Judicial Review) Act 1977, and the grounds of review comprehend
most irregularities which might mar the making of those decisions. Further, a member may complain concerning action taken by another member to the Ombudsman : s.22(1) of the Complaints (Australian
1
I	Federal Police) Act 1981. The Commissioner is himself a "member"
I
I	: see Australian Federal Police Act 1979, s.6(1). Part I11 of the
I
l
Complaints (Australian Federal Police) Act 1981 makes elaborate provision for the investigation of such a complaint and for publication in the Parliament of the Ombudsmanls dissatisfaction

b	with the Commissioner's response to any criticism he has made of the action taken. A member against whom proceedings for a
disciplinary offence had been instituted and who considered that action taken by another member in relation to the institution or
the prosecution of the proceedings was improper would be able to make complaint about that action under s.22, but the Ombudsman might, pursuant to sub-section 24(2A), determine that the action should not be investigated if he were of the opinion that it would have been reasonable for the complainant to have exercised any right he had to cause the action complained of to be reviewed by a
court. Further, in respect of each class of proceeding committed to the Tribunal's adjudication the Act speaks imperatively : "The Disciplinary Tribunal ... shall hear and determine" the particular class of proceeding, or "the proceedings shall be heard and determined by the Disciplinary Tribunal" - see ss. 67(3), 68(5),
6 9 ( 4 ) . Upon a consideration of all that the Parliament has so
comprehensively provided for the examination and rectification of action taken by a member of the Australian Federal Police in the performance of functions conferred on him in his capacity as a
'W	member by the laws of the Commonwealth, and a consideration of the careful delimitation of the functions and powers of the Tribunal, I consider that there is manifested a legislative intention that no power of the kind which Sergeant Curran seeks to persuade the Tribunal to exercise should inhere in the Tribunal. The power is not in my opinion one that can be seen to be necessary to enable the Tribunal "to protect itself from the abuse of its own procedure" (6 N.S.W.L.R. at 250). The Tribunal is expressly vested with power, "in any proceeding before it ... (to) adjourn the proceeding from time to time" (an example of the particularity
L	of the legislative prescription of the Tribunalus powers), and that power may be exercised at need to enable a member against
whom proceedings in relation to a disciplinary offence have been instituted to invoke either curial review or the Ombudsman's
investigation of decisions taken by the Commissioner or by another member concerning the institution or the prosecution of those proceedings.
If I were mistaken in the conclusion I have reached that the Tribunal lacks the power to stay a proceeding before it, the
circumstances which Mr. Howard offered to prove would not, if proved, attract the exercise of the power, which - if it exists - is a discretionary power. Mr. Howard did not offer to prove circumstances, or to advance submissions, showing that the Administrative Decisions (Judicial Review) Act 1977 would not afford Sergeant Curran the means of preventing the abuse of process which he alleges the institution of these disciplinary proceedings to have been. And I do not myself find in the circumstances disclosed to the Tribunal reason to think that an
L.	application by Sergeant Curran for an order of review in respect of each of the decisions made by the Commissioner under Regulation 19(1) of the Australian Federal Police (Discipline) Regulations to institute these five proceedings would not afford him adequate remedy for any wrong to him which the institution of those proceedings has worked. Part V1 of the Complaints (Australian Federal Police) Act 1961 requires the Tribunal to hear and determine both proceedings instituted by the Commissioner and appeals against decisions of the Commissioner made in disciplinary proceedings heard and determined by him. Until amended in 1985,
I/	s.67 required the Tribunal, when constituted by the President or a Deputy President, to "consult with the Commissioner or with

with respect to the penalty that it would be appropriate to	another member of the Federal Police nominated by the Commissioner
impose" in respect of a breach of discipline of which a member had been found guilty by the Tribunal so constituted and in relation to which proceedings had been instituted under that section. (Since the amendment the requirement has been to "afford the Commissioner (or another member nominated by the Commissioner) and the member concerned the opportunity to make representations with
respect to the penalty that it would be appropriate to impose".) The statutorily imposed relationship between Commissioner and Tribunal make it, in my opinion, desirable, if it be practicable, that the propriety and lawfulness of the Commissionerrs performance of the functions imposed on him of deciding whether to institute proceedings for disciplinary offences and of deciding what disciplinary offences should be charged be not submitted to evaluation by the Tribunal. In all the circumstances of this case no good cause has been shown to exercise the power to stay these

L proceedings as an abuse of process, in my opinion, assuming that the power exists and that the instructions Mr. Howard has are correct. Accordingly the Tribunal will fix a date for the hearing of the charges, allowing sufficient time for the institution by or on behalf of Sergeant Curran before that date of such legal or other proceedings as he may be advised. If before that date some such action has been taken by or on behalf of Sergeant Curran and application is made by Sergeant Curran or by the Commissioner for adjournment of the proceedings before the Tribunal beyond that date, the Tribunal will consider such an application.

preceding pages are a true copy of

I certify that this and the 13

the Reasons for Decision herein of Mr. Justice Jenkinson Deputy President.

......

Associate

Dated: 27 July, 1989