Commissioner of Police v Duthie

[1988] AFPDT 2

IN THE FEDERAL POLICE	)
) No. 6 of 1987
DISCIPLINARY TRIBUNAL	)

COMMISSIONER OF POLICE
Against
MICHAEL KEITH DUTHIE

IN THE MATTER of the Comalaints (Australian

~ederal police) Act 1981.

DECISION

TRIBUNAL :  Mr. Justice Jenkinson, Deputy President

DATE : 31 May, 1988

The Tribunal finds Senior Constable Michael Keith Duthie not guilty of the disciplinary offence charged in the notice (AFP

10/8788) dated 20 October 1987.

IN THE FEDERAL POLICE	1
) No. 5 of 1987
DISCIPLINARY TRIBUNAL	)

COMMISSIONER OF POLICE
Against

KEVIN CAREY

No. 6 of 1987

COMMISSIONER OF POLICE
Against
MICHAEL KEITH DUTHIE

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

31 May, 1988 MR. JUSTICE JENKINSON -
Deputy President

REASONS FOR DECISION

A charge of improper conduct against each of two members

of the Australian Federal Police, Michael Keith Duthie and Kevin
Carey, was heard by the Tribunal on 2 and 3 May 1988.

In February 1986 a number of persons were charged in Melbourne with offences, against Commonwealth law, which related

to heroin. One of those charged, whom I shall call X, was

addicted to heroin. Another, whom I shall call Y, was not

believed to use heroin. Senior Constable Duthie, who in February

1986 was a First Constable aged 23, became known to X and Y, on

.

the day they were charged, as one of the members of the Australian Federal Police who were engaged in the prosecution of the offences with which X and Y and others were being charged. X and Y suggested to Mr. Duthie that they would provide him with information concerning criminal activities with respect to drugs in return for assistance by him in their attempts to attract leniency by the court before which they should, or at least might,

'Y	be convicted. Mr. Duthie encouraged them to provide him with information of that kind without making any definite promise. He made an appropriate report, of the approach X and Y had made to him, to his superior, Detective Inspector Hellier.
On 19 March 1986 Mr. Duthie was informed by X and Y that they intended to obtain heroin that day from another of the men who had been charged with them in February, and that they would contact Mr. Duthie when they had done so. Mr. Duthie thereupon reported that conversation to Mr. Hellier, who told Duthie to keep
L/	him informed of what should happen. Later that day Mr. Duthie was asked by X and Y to meet them at an hotel in Melbourne. He later
went to a room in the hotel where X and Y showed him about 7 grammes of a substance they said was heroin. They gave him about
half a gramme of the substance so that he could take that sample to Australian Federal Police premises where it might be tested. The proposal of X and Y was that, if the sample were found by the police to be heroin of a purity which suggested that the supplier to them of the heroin was a person relatively high on the ladder of distribution of the drug, the police provide them with the
money promptly to pay that supplier for the 7 grammes already supplied in order that their credit with him might be enhanced and that thereby opportunities might be created for their further assistance in enabling the police to identify, and ultimately to prosecute, suppliers from whom their supplier was acquiring the drug. Mr. Duthie took the sample to the premises where it could be tested and where he could submit to Inspector Hellier the proposal of X and Y. Testing indicated that the sample contained heroin, but the proposal of X and Y was rejected by Inspector
ii	Hellier, who informed Mr. Duthie that no money would be provided to pay for the 7 grammes of heroin. Inspector Hellier instructed Mr. Duthie to return to the hotel room, where X and Y had undertaken to wait for Duthie, and to seize the remainder of the 7 grammes of heroin. Inspector Hellier also instructed Duthie that he was to be accompanied by another member of the Australian Federal Police. At Duthie's request Senior Constable Carey accompanied him when he returned to the hotel room.
When Mr. Duthie informed X and Y, on returning with anxiety, and was abusive to Duthie. His anxiety did not appear to
'U	Carey to the room, that no money would be provided and that he and
Carey would take the heroin away with them, X expressed fear and
be allayed by his hearing Y and Mr. Duthie agree that the failure of X and Y to pay the supplier for the heroin within the time stipulated ought to be explained to the supplier as the consequence of X's having administered the heroin to himself instead of selling it to other addicts. X declared himself to be fearful of death or serious injury at the hands of the supplier or of the supplier's agents. He begged to be permitted to administer some of the heroin to himself there and then, before it was removed by the two policemen. There is no evidence that either .
Mr. Duthie or Mr. Carey said or did anything which expressed consent to X's administration of the drug. He did administer the drug to himself by injecting it into his arm in their presence. Each saw what he was doing. Neither of them said or did anything to stop him. Shortly after the heroin was administered, the two policemen took possession of the rest of the drug and returned with it to the premises from which they had come.
Proceedings were instituted by the Commissioner against each of Duthie and Carey in October 1987 in relation to a disciplinary offence alleged in these terms:

"That you, the said ...... a member of the Australian Federal Police, were guilty of improper conduct in your official capacity, contrary to the provisions of paragraph lB(l)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about the 19th day of March, 1986, at Melbourne in the State of Victoria, you did suffer or permit ..(X). . to use a drug of dependence, namely, heroin, you knowing or believing such drug to be heroin."

Substances Act 1981 (Vic.) that a person who, without being	It is provided by s.75 of the Drugs, Poisons and Controlled
authorized by or licensed under that Act or the regulations thereunder to do so uses or attempts to use a drug of dependence is guilty of an offence against the Act and liable, in a case in which the drug is heroin, to imprisonment for a term of not more than one year, as well as to a monetary penalty. The verb "use" in s.75 includes introduction into the person's body and the

expression "drug of dependence" in the section comprehends heroin.

Counsel for no party adverted to the omission, from the statement of the disciplinary offence alleged, of any allegation that X was not authorized by or licensed under the Act or the regulations to introduce heroin into his own body. The hearing was conducted by counsel on the footing that the improper conduct charged consisted in suffering or permitting X to commit the criminal offence which is defined by s.75 and that X did commit

L	that offence. No evidence was adduced to prove that X was not so authorized or licensed. The explanation of these lacunae may be that the amendments effected by the Drugs, Poisons and Controlled Substances (Amendment) Act 1983 were overlooked. Before those amendments the provision corresponding to s.75 was s.94, in Part
V1 of the principal Act. Part V1 was repealed by the 1983 ~ c t .
The references to authorization and licensing were introduced by the 1983 Act. It was to the unamended Act that reference was made during the hearing.
'W	The two members charged and the Commissioner presented frankly to the Tribunal a clear representation of the relevant
events, concerning which there was no dispute, and their respective submissions were persuasively and concisely advanced by
Mr. Lorkin of counsel for the Commissioner and Mr. Howard of counsel for the two members charged.
The Commissioner did not suggest that either Mr. Duthie or Mr. Carey had failed in any way in due performance of his duty, except in the particular respect alleged in the statement of the charge. It was not a subject of criticism by the Commissioner of Mr. Duthie that he had suffered X and Y to acquire the heroin, or that he had suffered X and Y to remain in possession of the heroin while he took the sample for testing. I infer, and Mr. Lorkin made no submission in contradiction of the inference, that the Commissioner does not dissent from the opinion that under some circumstances a member of the Australian Federal Police may without breach of his duty and without impropriety suffer a criminal offence to be commited in his presence. It is by s.73(1)
ii	of the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) an indictable offence for a person to have heroin in his possession without being authorized by or licensed under that Act or the regulations thereunder to do so. Aiding the sale of heroin by a person not authorized by or licensed under that Act or the regulations so to sell is an indictable offence : see ss. 80(1) and 71(1). If the commission of the former offence continues while a person who has obtained possession continues in possession, H r . Duthie might have been said to have suffered the commission of that offence by X and Y while he left them in
L	possession of the heroin. And it might have been said that Mr. Duthie did not attempt to prevent X and Y from committing the
obtain the heroin. To buy would be to aid the seller's commission latter offence after they had told him that they intended to
of the offence of selling the heroin. (Of course the obtaining of the heroin might have been otherwise than by sale, but advertence to that possibility seems unlikely.) It has been said that the first duty of a constable of police is to prevent the commission of crime, but there is judicial authority that circumstances may justify abstention from performance of the duty on some occasions
: Halsbury (4th ed) vol. 36 para. 320; Wright v. McQualter (1970)
17 F.L.R. 305. It may be inferred that the Commissioner thought that there may have been circumstances which justified Mr. Duthiels failure to attempt to prevent X and Y from carrying out their stated intention to obtain heroin from the person who later sold it to them, and circumstances which justified Mr. Duthie's failure to bring to an end the unlawful possession of the heroin by X and Y as soon as he found them in possession of it.
It might have been, but was not, said on behalf of the Commissioner that it was "improper", in one sense of that word, to suffer X to use any of the heroin because that use prevented Mr. Duthie from complying fully with the instruction he had received to take possession of that heroin. It was not the Commissionerfs contention that the impropriety with which Duthie was charged consisted in disobedience of Inspector Hellier's instruction, although, as will appear, the giving of that instruction was said on the Commissioner's behalf to be one of the circumstances upon a consideration of which impropriety was shown. (Disobedience of a
L	lawful instruction is constituted a disciplinary offence by Regulation 18(l)(a) of the Australian Federal Police (Discipline)
Regulations.) The impropriety consisted, according to Mr. Lorkin1s submission on behalf of the Commissioner, in the failure
to act to prevent the commission of a criminal offence, upon the commission of which each member charged was aware that X was embarking, in circumstances in which no consideration of public interest existed which might justify that failure. The critical circumstances by reference to which that failure was to be judged improper, Mr. Lorkin submitted, were that each of Mr. Duthie and Mr. Carey was under a direction by a superior officer to take possession of the heroin, that each was aware that X was about to inject himself with some of the heroin, that each was so circumstanced that he had the physical capacity to prevent X from injecting himself, and that each knew that X would commit a criminal offence by injecting himself.
Neither member charged denied that the circumstances were as Mr. Lorkin stated them, although Mr. Carey knew of
L/	Hellier's direction only from Duthie. Carey did not himself speak to Hellier concerning the task he was told by Duthie that they were to perform. Duthiels justification of his failure to prevent X from injecting himself was that he believed that X, and probably Y also, would discontinue the provision of information to him about criminal activities concerning drugs if he prevented X from injecting himself, and that thereby the interest of the Australian Federal Police in preventing those activities would be prejudiced. Careyfs justification was that he believed that his intervention to prevent X from injecting himself might result in the
L.	discontinuance of the provision by X and Y to Duthie of information about criminal activities concerning drugs and that
preventing those activities would be prejudiced. thereby the interest of the Australian Federal Police in
On the evidence before me I find that each of the members charged did have the beliefs each claimed to have had.
Mr. Lorkin submitted on behalf of the Commissioner that in the case of each member charged the beliefs found did not
affect the characterisation of the conduct charged as improper. Those beliefs merely raised matter in mitigation, he said.
In my opinion a determination by the Tribunal that particular conduct of a member charged is or is not within the description expressed by the words "improper conduct" in Regulation 18(l)(d) concludes the question whether the member is or is not guilty, subject to curial correction under Division 5 of Part V1 of the Complaints (Australian Federal Police) Act 1981 by
I.	the Federal Court of Australia, or under section 73 of the Constitution and section 33 of the Federal Court of Australia Act 1976 by the High Court of Australia. The answer to that question cannot be altered from guilty to not guilty by the circumstance that the member charged is found to have believed that the particular conduct was not within that description. The absence of such a belief is not an element of the disciplinary offence, nor does the existence of the belief constitute an exculpatory circumstance, in my opinion: see Prowse v. Bartlett (1972) 3 S.A.S.R. 472 at 480; Commissioner v. P.G. Sloane (Federal Police
L.	Disciplinary Tribunal decision : 25 September 1985). On the other hand the existence of a reasonable belief that one's conduct will
of a function of the Australian Federal Police may in some serve a legitimate purpose and further the successful performance
circumstances be relevant to the determination by the Tribunal of the question whether that conduct was improper, in my opinion.
In my opinion the adjective "improper" in Regulation 18(l) (d) requires, at the least, that the conduct specified in the charge be inappropriate, in a serious respect, for a member of the
Australian Federal Police in all the circumstances in which the conduct occurred. In the particular circumstances of this case what is in question is the appropriateness of conduct occurring in the course of the performance - indeed the appropriateness of the way in which was carried out the performance - of a particular kind of duty. The particular kind of duty was association with persons who will or who may furnish information useful to the Australian Federal Police in the execution of the duties of preventing and detecting the commission of crimes, with a view to
L.	obtaining such information. There is a General Instruction by the Commissioner "to prescribe the general policy of the Australian Federal Police in relation to Police Informants; to establish procedures for the administration and registration of persons who supply, or agree to supply, information to the Australian Federal Police; to declare the policy of the Australian Federal Police with respect to business conducted with Informants and the payment of rewards for information; and for other related purposes." The General Instruction does not, however, afford any assistance to a member of the Australian Federal Police to determine the
'W	circumstances in which it is, or the circurmstances in which it is not, improper to suffer the commission of a crime in his presence
while he is associating with persons from whom he hopes to gain information of the kind in question. Each of the members charged
gave uncontradicted evidence, which Mr. Lorkin challenged neither by suggestion in cross-examination nor in submission to the Tribunal, that at the time he engaged in the conduct charged he had not received any instruction or training bearing on the question as to whether, and if at all in what circumstances, a member of the Australian Federal Police may without impropriety suffer the commission of a criminal offence in his presence while he is associating in the performance of his duties with persons from whom he hopes to obtain useful information concerning criminal activity. I accept that evidence. As I have already stated, it seems to have been accepted by the Commissioner that there are circumstances in which the commission of crime may be suffered by a member without impropriety. I took Mr. Lorkin's submission to be that, since Hellier's instruction to seize the heroin had brought to an end the particular enterprise which X and Y had proposed as a means of providing the Australian Federal
L.
Police with useful information, no legitimate interest of that body or of the community was being served by permitting the commission by X of the crime he did commit in the presence of Duthie and Carey. But those two members were looking beyond the particular enterprise to the possible future fruits of an association with X and Y and had in mind that possibility as the interest to be served by suffering the crime to be committed. In my opinion a wise evaluation of the considerations for and against suffering the commission by X of the crime he committed is hardly to be achieved without the guidance of police officers of long
U
experience. Neither of the members charged had had the benefit of any guidance by police officers of that experience in evaluating situations of the kind which faced them on 19 March 1986. The
decision had to be taken quickly, without prior consultation between them. The crime was one which they had good reason to believe X had been habitually committing and would continue habitually to commit. The crime did not directly cause physical or mental suffering to anybody other than X. The only witnesses to the commission of the crime were Y, who well knew that X
habitually committed the crime, and themselves. The quantity of the drug X was about to use was only a small part of what they had been instructed to seize. The Tribunal itself has not had evidence by any police officer of substantial experience concerning the considerations which experience has shown to be relevant to a determination of the circumstances in which the commission of a crime in his presence may without impropriety be suffered by a policeman engaged in duties of the kind in which the two members charged were engaged. In all the foregoing circumstances the Tribunal is not able to conclude that the conduct of either member was improper conduct within the meaning
of Regulation 18(l)(d). Each charge will be dismissed.

I certify that this and the eleven (11) preceeding pages are a true copy of the Decision and Reasons for Decision herein of Mr. Justice Jenkinson Deputy President.

Dated: 31 May, 1988