Commissioner of Police v Duthie Summary

JUQGMENT No. ........ ........ .. ........ .. wz , Q

IN THE FEDERAL POLICE )
) No. 6 of 1987
DISCIPLINARY TRIBUNAL 1
COMMISSIONER OF POLICE
Against
MICHAEL KEITH DUTHIE
IN THE MATTER of the Complaints (Australian Federal Police) Act 1981.

DECISION

TRIBUNAL : Mr.,Justice Jenkinson, Deputy President

DATE : 20 February, 1989
The Tribunal orders that the costs of these proceedings before it incurred by Senior Constable Michael Keith Duthie be paid by the Commonwealth .

IN THE FEDERAL POLICE )
) 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.

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

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

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

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.

Associate

Dated: 20 February, 1989

The Federal Police Disciplinary Tribunal presided over by Mr. Justice Jenkinson, Deputy President, heard two cases involving Senior Constables Kevin Carey and Michael Keith Duthie. The Commissioner of Police had charged both officers with disciplinary offences under the Complaints (Australian Federal Police) Act 1981. Both officers were found not guilty of the charges against them. The primary legal issue before the Tribunal was whether the Commonwealth should bear the costs of the proceedings incurred by each officer, given their acquittals. This decision hinged on the discretionary power conferred by Regulation 7 of the Complaints (Australian Federal Police) Regulations, which allows for such costs to be awarded if the officer is found not guilty of the charged breach of discipline.

The Commissioner opposed the award of costs, arguing that the officers had provided inconsistent accounts of the events leading to the charges when initially questioned by their superiors compared to their testimony before the Tribunal. However, the Commissioner did not allege deliberate untruthfulness but rather a failure to provide sufficiently accurate and comprehensive accounts initially. The Tribunal considered this inconsistency but determined it was not sufficient to deny the officers' entitlement to have their costs paid by the Commonwealth. The Tribunal concluded that neither officer had acted in a manner that merited the denial of a costs order, and therefore, exercised its discretion to order that the Commonwealth pay the costs incurred by each officer in the proceedings.

Commissioner of Police v Duthie

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL POLICE	) ) No. 6 of 1987
DISCIPLINARY TRIBUNAL	1

TRIBUNAL :	Mr.,Justice	Jenkinson, Deputy President
DATE	:	20 February, 1989

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

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