Commissioner of Police v Gallagher

[1988] AFPDT 4

IN THE FEDERAL POLICE

1 No. 5 of 1988 1

DISCIPLINARY TRIBUNAL )

COMMISSIONER OF POLICE

Against

GRAHAM JOHN GALLAGHER

IN THE MATTER of the Complaints (Australian

~ediral police) Act 1981.

DECISION

TRIBUNAL :  Mr. Justice Jenkinson, Deputy President

DATE	:	21 November, 1988
.-

l. The Tribunal finds Senior Constable Graham John Gallagher not guilty of the disciplinary offence charged in the notice (AFP:8/8889) dated 5 August 1988.

2.         The Tribunal orders that the costs of the proceedings before it in relation to the said charge which were incurred by Senior Constable Graham John Gallagher be paid by the Commonwealth.

IN THE FEDERAL POLICE	) ) No. 5 of 1988
DISCIPLINARY TRIBUNAL	)

COMMISSIONER OF POLICE
Against
GRAHAM JOHN GALLAGHER

IN THE MATTER of the Complaints (Australian

~ e d e ~ a l Police) Act 1981.

ii 21 November, 1988 MR. JUSTICE JENKINSON -
Deputy President

REASONS FOR DECISION

i*

Senior Constable Graham John Gallagher was charged by the Commissioner of the Australian Federal Police with the commission of the diciplinary offence of improper conduct otherwise than in his official capacity. The conduct particularised as improper is that he supplied a blank medical

L'

certificate form to Peter Francis Roberts.

It was established CO my satisfaction beyond reasonable doubt that a young lady named Nancy Rochanakij furnished to her employer in October 1987 and again in November 1987 what purported to be a medical certificate concerning her unfitness for work on 9 October 1987, in the first instance, and concerning her unfitness for work on 30 October and 2 November 1987 on the second occasion; that the printed form of the certificate in each case was a

photostatic copy made from a form for use by, and bearing as a superscription the name of, Doctor Nicholas' Loizou, a legally qualified medical practitioner who at material times carried on medical practice at Footscray; that the handwritten additions were made, in the case of the first certificate, by Miss Rochanakij, and in the other case by the young man with whom she was then cohabiting, Gavin Roberts, who is a son of the Peter Francis Roberts to whom the particulars of the charge refer; that Senior Constable Gallagher was at material times a friend of Peter Francis Roberts and of Robertsr wife and of his son. Gavin; and

L	that Gallagher was at material times both a patient and an acquaintance of Dr. Loizou, to whose blank medical certificate forms Gallagher had had access in circumstances in which he could without difficulty have taken a number of such forms into his possession without the knowledge of Dr. Loizou or of any other person.
The young couple's forgeries became the subject of investigation by the Victorian police. On 10 November 1987 Miss Rochanakij signed a typed record of an interview with Victorian
Q	police on that day, during which interview she said that Peter Francis Roberts had received from a friend of his known to her as
Gallagher is known, some blank medical certificate forms of which "Gaggs", a name by which it was admitted that Senior Constable
Peter Roberts made photocopies, that one of the copies was given by Peter Roberts to his son Gavin, by whom that copy was photocopied at Gavin's place of employment, and that from those photocopies made by Gavin Roberts the two forged documents were made. On the same day Gavin Roberts, who was at that time a very
junior member of the Victorian Police Force, gave a broadly similar account of the circumstances attending the commission of the forgeries after he had been permitted by the investigating police officers to read the record of Miss Rochanakij's interview and to confer with her privately. Both of them were later found, in proceedings in a Magistratesr Court, to have committed the forgery each had in fact committed. Each of them was called by counsel for the Commissioner to give evidence on the hearing before this Tribunal of the charge against Senior Constable Gallagher. Gavin Roberts' evidence was that the two photostatic
L	copy medical certificate forms used in the two forgeries, and other copies he had seen in Miss Rochanakij's possession, had been produced by her, that he did not know how she had got them, or from whom, that he had no information or belief tending to indicate that Senior Constable Gallagher or any member of his own family had ever had custody of any blank medical certificate forms, and that those of his answers to police questions on 10 November 1987 which suggested the contrary were made because he then loved Miss Rochanakij and desired to corroborate the account she had given the police. He denied in evidence that he had
L,	himself ever photocopied any medical certificate form, but he admitted that he had written what appeared in handwriting on the
in evidence that it was she who had, on Monday 12 October 1987, second of the two forged certificates. Miss Rochanakij admitted
made photocopies of the photocopy medical certificate form which, she swore, had been given to her on 9 October 1987. Her accounts of the way in which she received that blank certificate form varied. To the Victorian police she said on 10 November 1987 that on 9 October 1987 Gavin Roberts "had to work so his father dropped it in". When on 17 February 1988 she was questioned by members of the Internal Investigation Division of the Australian Federal Police the following questions and answers were made:

"~.48.	Who completed the writing on the certificates.
A.	The first one is Gavinls writing and the other is my writing.

Q.49. How did you come into possession of

these certificates.

A . Mr ROBERTS Senior gave Gavin one and Gavin took it to work and photocopied it.

4.50. Were you present when Mr ROBERTS gave Gavin the blank certificate.

A. NO.

Q.51. Then how do YOU know that Mr ROBERTS gave Gavin the Certificate.

A.	Because Gavin told me.
4.52.	Can you tell me exactly what Gavin told you about his father giving him the certificate.
A.	I woke up one morning and my legs were sore and I said to Gavin that I would have to go to the doctors and get a sick certificate and he said don't bother Dad will give me one, and he went off to work and I didn't see him till later that night. He was supposed to finish at 6.00pm and didn't get home until 8.00pm and he gave it to me. He said he had been over to his mums and he gave it to me when he came back."

Later the following question'was asked (a question prompted by

what Miss Rochanakij had said to the Victorian police on 10
November 1987) and the following answer was given:

"Q.70. Nancy in question 30 of your record of interview with Detective HYDE in answer to the question, 'Did you tell Gavin that you were going to tender the certificate to work when you asked him for it1, you answered, 'Yes but it was

on a Friday and he had to work so his father dropped it in', can you explain that answer to me.

Well when Gavin told me he would get me a medical certificate that the one I filled in, he was going to go over to his mum's to pick it up but he was on call. About two o'clock that afternoon his father called over to our flat and handed me an envelope and told me it was for Gavin. He didn't tell me what was in the envelope and he didn't stay long as I was sick. When Gavin came home that evening about ten o'clock I gave him the envelope and he took it out of the room and went downstairs. he came back a short while later and gave me the blank medical certificate. I didn't open it because before Gavin joined the Victoria Police he had been an Australian Protective Service Officer and the envelope that his father had given me that afternoon was a brown envelope with Australia Protective Service written on it, and I thought his father must have access to those sought of envelopes."

Miss Rochanakij did not in evidence explain in a way that I could understand those apparent inconsistencies.

Counsel for the Commissioner did not call either Peter

Roberts or his wife to give evidence. Miss Rochanakij's account

L	to the members of the Internal Investigation Division in February 1988 of the indications she had received that Senior Constable
Gallagher was the source of 'the blank medical certificate form accorded a prominent role to Peter Roberts' wife, who was said by
Miss Rochanakij to have made several statements in Miss Rochanakij's presence that she, Mrs. Roberts, had received such forms from Senior Constable Gallagher. The account Miss Rochanakij gave to the members of the Internal Investigation Division she verified substantially in her evidence before the

Tribunal

Dr. Loizou gave evidence that, although Senior Constable Gallagher, like a number of other persons, had had the opportunity to take without his knowledge or permission from the building where he carried on practice one or more of his blank medical certificate forms, he had no information to suggest that Senior Constable Gallagher had done so. He swore that no such a form had been taken out of his possession with his permission.

'W The evidence was that Senior Constable Gallagher had at all times denied having taken, or having had possession of, any of Dr. Loizou's blank medical certificate forms.

The Tribunal is not bound by the rules of 6"idence. The

Tribunal did not therefore exclude evidence of what Miss Rochanakij and Mr. Gavin Roberts had said to police officers when Senior Constable Gallagher was not present, nor evidence of what each of them told police officers that he or she had heard said when Senior Constable Gallagher had not been present. Miss

'W	Rochanakij's evidence in this proceeding that she had heard statements incriminating Gallagher as the source of the
which were alleged to have been made by or in the presence of certificate form is contradicted, in relation to those statements
Gavin Roberts, by his sworn testimony. His demeanour in the witness box gave little assurance of truthfulness, and it seemed strange that on 10 November 1987 he would falsely incriminate both his own father and his father's friend Gallagher in order to support Miss Rochanakij's story to the Victoria police. But the impression he conveyed in the witness box left room for the hypothesis that he had in panic and confusion decided to adopt her story. Strange it is also that Miss Rochanakij should on 10 November 1987 have invented a wholly false account of the source of the medical certificate form. But her own testimony convicts her of a false account on that day of the identity of the person who made photostatic copies of the form : it was she, not Gavin Roberts, according to her evidence. If she had come into possession of the form from some source other than the Roberts family, she might have been resolute and resourceful enough, her
'4	demeanour in the witness box suggested, to invent with circumstantial detail another source in order to conceal the identity of the person from whom she had in fact received the form. In the course of her association with the Roberts family she might have learnt before 10 November 1987 that Senior Constable Gallagher was an acquaintance of Dr. Loizou. She certainly knew that he was a friend of Peter Roberts.
At the conclusion of the evidence in support of the charge counsel for Senior Constable Gallagher submitted that the
L	evidence afforded no case to answer. Regulation 9 of the Complaints (Australian Federal Police) Regulstions provides:

a member is guilty of a breach of discipline	"The Disciplinary Tribunal shall not find that
unless the Tribunal is satisfied beyond reasonable doubt that the member is so guilty."

I concluded that sub-sections (1) and (2) of s.76 of the

Complaints (Australian Federal Police) Act 1981 authorized me to

consider whether the evidence then before the Tribunal was such that a tribunal of fact acting reasonably might be satisfied by it beyond reasonable doubt that the charge was proved and to dismiss the charge if I considered that such a tribunal, so acting, could not be so satisfied. Those sub-sections provide:

"(1) In a proceeding before the Disciplinary Tribunal, the procedure of the Tribunal is, subject to this Part, and to the regulations, within the discretion of the Tribunal.

(2) A proceeding before the Disciplinary

Tribunal shall be conducted with as little formality and technicality and with as much expedition as the requirements of this Part and a proper consideration of the matter before the Tribunal permit."

While the evidence may justify a reasonable suspicion that Senior Contable Gallagher supplied a blank medical certificate form of Dr. Loizou to a member of the Roberts family,

I consider that the evidence was not such that a tribunal of fact

acting reasonably might be satisfied by it beyond reasonable doubt that he had. That is the conclusion I reach, whether the evidence is considered in the light of my evaluation of the relative

L	persuasiveness of the evidence of witnesses whose evidence is contradictory or is considered on the basis that so much of the
evidence as tends to exculpate Senior Constable Gallagher is ignored and that all the evidence which tends to incriminate him
is assumed to be accepted by the tribunal of fact. On the latter basis all that is available to incriminate Senior Constable Gallagher are unsworn statements by members of the Roberts family which the evidence of Miss Rochanakij is assumed truthfully to have reported, the statements of Gavin Roberts to the Victorian
police on 10 November 1987, and inferences from the making of all those statements. The inferences of guilt arise from the improbability that the several members of the Roberts family would, in the circumstances in which the statements were made, have falsely incriminated Senior Constable Roberts. But on this basis much of the evidence of Gavin Roberts is simply assumed to have been not accepted and the tribunal of fact is not able to venture upon an evaluation, based upon his evidence before the Tribunal, of the psychological processes which might have underlain his statements incriminating Senior Constable Roberts
'W	which the evidence of Miss Rochanakij reported. The Tribunal has neither seen nor heard either of Gavin Robertsr parents and therefore has had no opportunity to measure the strength of any inference, from their reported statements, of Senior Constable Gallagherfs guilt by reference to any evidence of theirs. There was no evidence to suggest that either of them was unavailable to be called to give evidence. In all those circumstances a tribunal of fact acting reasonably could not in my opinion have been satisfied beyond reasonable doubt of Senior Constable Gallagher's guilt if it had accepted all the incriminating evidence and had
ii	rejected all the exculpatory evidence. Accordingly I indicated in response to the submission of counsel for Senior Constable
of the charge. Gallagher that I would find Senior Constable Gallagher not guilty
This is, I considerj a case in which the power should be exercised which is conferred by Regulation 7(l)(a) of the Complaints (Australian Federal Police) Regulations to order that the costs of the proceedings before the Tribunal incurred by
Senior Constable Gallagher be paid by the Commonwealth. It was submitted by counsel for the Commissioner that such an order should be refused because Senior Constable Gallagher might at less expense have exercised the option afforded him by s.67(2) of the

l Complaints (Australian Federal Police) Act 1981 and Regulation 19 of the Australian Federal Police (Discipline) Regulations to have the charge heard and determined by the Commissioner. If it be assumed that the exercise of the option in favour of a hearing by the Tribunal might in some circumstances, as for example when the disciplinary offence charged was not a serious breach of

'v	discipline, be weighed against the grant of an order for payment
of costs, yet this is not, as I think, such a case. If the charge
had been proved, and if the evidence had shown that the
certificate had been supplied in the belief that it would be used

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to defraud some person's employer, %.he breach of discipline would have been shown to be of a very grave character. In those circumstances the exercise of the member's right to choose trial by the Tribunal could not in my opinion properly be weighed against the award of costs.

I certify that this and the 9

preceding pages are a true copy of

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

Dated: 21 No c6 ember, 1988