Commissioner of Police v Donaldson

[iqg J lafPPT

IN'.THE FEDERAL POLICE

No . FPDT 3 of 1985

DISCIPLINARY TRIBUNAL	No . FPDT 4 of 1985
THE COMMISSIONER OF POLICE

agains t

SERGEANT ROBERT ALEXANDER

GEORGE DONALDSON

THE COMMISSIONER OF POLICE

against

SERGEANT GEOFFREY STEPHAN

HOBART

REASONS FOR DECISION

MAGUJIRE, Q .C . - Member

3 April 1986

•

Sergeant Robert Alexander George Donaldson, a member of the Australian Federal Po L _ce, is charged with a single disciplinary offence, number 23/8485, the gravamen of which is that he was quilty of improper conduct otherwise than in an

official capacity, namely that being a more senior officer he did request Senior Constable Geoffrey Stephen Hobart not to

report an offence, namely a larceny at the Total Service

Station, Scullin, which was known to Hobart,

+. nowI

.-n9- that

• Hobart was required to report such an offence.

When these proceedings initially came before the Tribunal on 18 June 1985 Sergeant- Donaldson was represented by counsel . . He was so represented at a. further directions hearing on 12 August'l985 and again on 10 December 1985. It

was on that occasion, namely 10 December 1985, that the Tribunal fixed. the hearing of the proceedings for Tuesday, 1 April 1986.

• On material that is in evidence before the Tribunal,

Sergeant Donaldson continued to be represented by the

solicitor whom he had initially instructed until last week. Thereafter he changed . his solicitor and instructed another. Thereafter he withdrew his instructions from that second solicitor, Mr Buxton, who, as a matter of courtesy, appeared before the Tribunal on Tuesday morning this week to inform me

that he no longer had any instructions.

There is an irresistible inference that the sergeant was aware of the fixing of the hearing to commence before the Tribunal on Tuesday . In the circumstances of his failure to appear, I was asked by counsel for the Commissioner to deal with the matter ex parte, that seemed to me to be an appropriate course to take . Also listed for hearing were three charges arising generally out of the same set of circumstances, which three charges were laid against Sergeant

• Hobart, the person mentioned. in the charge against Sergeant

Donaldson.

No point had ever been taken at any of the directions

hearings about the proprietory or otherwise of the charges

being heard. together., that is the charge against Donaldson and

the charges against Hobart . When it became clear that I proposed to deal ex parte with Donaldson, there being no choice in the matter, he having failed to attend, Mr Purnell of counsel. for Hobart suggested for the first time that that would not be a proper course - that it would not be proper for me to deal ex parte with Donaldson at a joint hearing with Hobart . I: was not able to understand the reasons he advanced for that proposition and I rejected it . The matters therefore proceeded to be heard together.

The evidence against Donaldson suggests that he in

1983 was conducting a service station at Scullin in the Australian Capital Territory . There is a thin corporate veil over Donaldson' s association with the conduct of that business in that the evidence suggests there is a company or which two

relatives of his are directors . But the evidence before me, and I refer in particular to exhibit 03 page 12 .3 suggests that the real controlling interest in the business was Sergeant Donaldson_

In December of 1983 there were employed. at the

• business two driveway attendants, one named . Hogan whom I have

not seen, and another named Dawson whom I have seen . Dawson

swore that he had been hired in that business some months

before December 1983 by Sergeant Donaldson and I accept that

evidence . By 1.8 or 19 of December 1983 it had become apparent to Donaldson that. there had been one or more thefts of . money from the business premises which thefts seemed likely to have

been perpetrated either by Hogan or by Dawson.

That, having come to- his knowledge, appealed to him

410 as a matter fit for investigation by the Austr Tian Federal Police. The appropriate thing for him to have done was to communicate with a detective or other police officer at the local police station, namely the Belconnen police station.

Donaldson did not do that .

He chose instead to

communicate with somebody at the Woden Valley police station

which was the station at which he was then stationed . He made his communication .d :i rectly to a senior constable of his own

choosing who was his friend, senior constable now Sergeant Hobart . He informed Hobart that there were discrepancies in the takings of the business and he asked Hobart to question Dawson in relation to larcenies from those premises, exhibit D3, page 8 .9.

In response to that . request Constable Hobart attended

on the same day at the premises of the service station

• business in Scullin . He attended there in police uniform . It.

was Donaldson's clear understanding that in requesting him so

to attend that the senior constable would be involved in

leaving his area . On the evidence available against Donaldson

Hobart secured from Dawson an admission of guilt, that is that he had taken from the business a total of $310 . There was- then, according to Donaldson's admissions made to Superintendent Stoll, further conversation between himself and Hobart which conversation included a request by Donaldson of Hobart to make no official record of the matter . That request.

• is clearly admitted by Donaldson in exhibit D3 at page 15 .8_

He was asked in the course of his interrogation by Superintendent Stoll, what was his reason for making that request and he said that there were further matters to be investigated and. he wanted to speak further to the father of'

Dawson in relation to other matters .

The administration of the police force is a matter

that ought to be conducted. for the benefit of the public . It

ought not be conducted for the private benefit of individuals,

particularly individual police officers . That must be one of

the reasons why general instruction 18 is framed as it is. When a police officer embarks upon a criminal investigation, it is of the highest importance that his superiors know where

he is, what he is investigating and . from time to time, how far

his investigation has got . It is also important that some of

his colleagues - and I refer to modus operandi people, finger

• print record people and others - are able as soon as possible to put to the public good, information obtained ..

What has' happened here is- that for own purposes, Sergeant Donaldson, has secured the attendance, not of an appropriate police officer, but one of his own choosing, outside that officer's geographical area of responsibility and in circumstances where Donaldson was able., as it turned out

for some time at least, to maintain control over the actions

or omissions of the only policeman involved in the investigation, apart from himself. He diverted public

resources, namely the time and energy of Senior' Constable Hobart, and the vechicle with the cost of running it away from where they were meant to be and into his private service . He. sought to maintain the secrecy of that by directing Constable. Hobart not to put in the criminal offence report which Hobart plainly was obliged to submit promptly .

When asked by Superintendent Stoll, "Are you aware

that Senior Constable Hobart has made no official record of

the ;nattertowhichwe havereferredduringthis

conversation?" Donaldson replied, "Yes, at my request ." That is the clearest possible admission of Donaldson's guilt of the

charge 23/8485.

I remit the proceedings to the Commissioner for the imposition of a penalty on Sergeant Donaldson.

Turning now to the charges against Sergeant Hobart, as he now is . Those charges are three in number . I have already indicated in the course of addresses from counsel that as to two of them, I am not satisfied.

•

The first charge against that officer, namely 24/8485 alleges that whilst on duty he failed to make an entry in his official notebook of a matter of which a_ note should . be . taken. And the matter-, the subject of the required note, is set'. out in the terms of the charge.

The charge is laid. pursuant to general instruction

37, instruction 4b . I have been troubled throughout the

hearing by the very terms of that general instruction itself

but other issues arise apart from that . The instruction, on

the face of it, makes obligatory the making of an entry of any'

matter of which a note should be taken .

That seems to me to be saying to a police

officer,

"You shall write down what you should write down ." It is very close to being-meaningI so . and I have - I think perhaps that very fact is responsible for the practice that the Tribunal has been told about during the course of the evidence, namely

that it is by many officers, including many officers senior to the respondent, honoured in. the breach. Aside from the difficulty I have with . the drafting of the general instruction

the evidence suggests to me very strongly that Sergeant Hobart has been trained in a . way that does not - that is trained by

• instructors in the Australian Federal Police . - that does not

induce him to use his notebook, but .to use other materials to

record_ events as they occur from time to time in the course of

his investigations.

And, indeed, in the present case he has sworn, and I.

accept him, that on . 20 March 1983 at the Scullin Service

Station he made notes otherwise than in his notebook . In all

the circumstances I . am not satisfied that the offence alleged in 24/8485 is made out .The second charge against Sergeant

• Hobart is number-24/8485, the essence of which is that he

having had an offence, namely a larceny at the Total Service

Station, Scullin, reported to him did fail promptly to submit a typed criminal, offence report, contravention of general instruction 18(6) to which I have already referred in dealing with the charge against Sergeant Donaldson . I simply remind'

myself of the importance of the bringing into being of such

documents promptly as I alluded to that importance in the

course of my findings in relation to Sergeant Donaldson.

Sergeant Hobart was alto interviewed in relation to these matters by Superintendent Stoll and a transcript of the tape recording of the interview is exhibit H2 in these proceedings . In the course of that interview at page 12 .5 he was asked, "Have you at any time submitted a COR, a criminal offence report?"He answered, "No ."Further he was asked, "Would you care to tell me your reasons for not doing so?" He

• answered, "Because of the fact that Mrs Donaldson, through

Sergeant Donaldson informed me that she did not wish any

formal police action to be taken . I guess r short-circuited

the system as a . COR should. have gone in and then a. supplementary COR advising-that no- .formal_ action should be taken ." Now, it is important to read those answers with great care . The charge. that he is brought here to answer alleges an offence on 20 December 1 .983 and I: have no business . to look at. any subsequent offence as-he himself seems to be doing in one at least of the answers that r have just read. from exhibit H2..

I. think if one reads the short-circuit answer

carefully what he is really saying is that there should. have

been a COR initially and then a supplementary COR should have

gone in after the communication from Mrs Donaldson through Sergeant Donaldson . Be that as it may it is clear to me that

his obligation under general instruction 18(6) was to submit a

typed criminal offence report before he went off duty on 20 December L983 . He had been asked to investigate a larceny, he had done so to some extent and before he left the premises at

Scullin he had reached a state of mind that enabled him to tell Sergeant Donaldson that Dawson was responsible for taking the money or perhaps to tell Sergeant Donaldson that Dawson was probably responsible for taking the money .He gave evidence to the effect of each of those propositions . The terms of 18(6) do not, in any way, limit the obligation to report the circumstances where there is a clear case against some offender . A reported offence even without any indication

•

of an offender is caught by that provision and it is therefore at least the purposes to which I alluded in giving judgment in relation to Sergeant Donaldson.

I bear in mind the expert evidence given by Chief Inspector Brian Fletcher . It must, as a matter of logic, be the obligation of the member to submit his report before

goes home at the end of the shift for, when he does- go home, he does not know what- events might overtake him ; he does not

410 know what lapse of memory might befall him . The obligation is expressed to be to make the report promptly . It must mean, as I read it, that his obligation is to do it on the day or, at least, as soon as practicable thereafter. . There can be no

suggestion that he made any attempt on the day or immediately

thereafter to comply with the provisions of 18(6) . It seems'

to me that that offence is made out and I remit the

10.

proceedings to the Commissioner for him to impose a penalty.

Sergeant Hobart also stands charged with a third disciplinary offence, namely 26/9485, the gravamen of which is that he knowingly made, in the course of his duty, an oral statement that was false, the oral statement alleged being part of the interview between himself and superintendent ( as he now is ) Stoll on 8 March 1984, the transcript of which is now exhibit H2 and to which I have already referred.

A finding of guilt on that charge is only possible if

• one accepts the evidence given here of the man Dawson . Dawson

has- told the Tribunal that at the Scullin Service Centre on 20

December 1983 while he, Dawson, was being interviewed by the respondent, Hobart, he, Dawson, admitted. the commission of an offence or offences to Hobart . That evidence- of Dawson is not corroborated in any way by any other evidence before the tribunal . The falsity, if it be false, alleged against the respondent is his' assertion to Stoll that Dawson had denied the allegations.

I have been greatly troubled by this charge . I have the gravest 'suspicions . I bear in mind that heretofore Sergeant Hobart has borne a good reputation which has been deposed. to by a number of his senior officers . As against

that, I bear in mind that in this very case he lent himself to,

an irregular operation which was designed not to be a

discharge of his duty, but to be something that he was doing

in the private service of his friend Sergeant Donaldson . That

circumstance,- I think, militates against an almost automatic acceptance of him as a man of the highest character and credibility.

However, one must look also at his accuser .

positively disbelieve the accuser, namely Dawson, on one aspect of his evidence . When questioned about what I think he said was his only conviction, namely a convictionfor

• shoplifting which arose out of events that occurred apparently

some time after 20 December 1983, he sought to excuse himself

from culpability by saying that he had . pleaded guilty to an

offence which he had not committed and which offence had been committed by his former girlfriend's-mother . h simply do not believe Dawson when he says that . There are many woolly areas

of his evidence. which have been exposed in the course of cross-examination of him . L think it would be dangerous to make what would be a. very serious finding indeed . against Sergeant Hobart,. namely that he knowingly made a false

•

statement to Superintendent Stoll . on the evidence of that . man.

In relation to 24 and 26, I make a finding of not guilty in each case . In relation to 25, I make a finding of guilty and remit the proceedings to the Commissioner for imposition of a. penalty.

I order that the Commonwealth pay 50% of Sergeant

Hobart's costs of _the proceedings.

(Mr B .R . Maguire, Q .C .,

Member,

Federal Police Disciplinary

Tribunal)

•

[1986] AFPDT 2

03 April 1986