Commissioner of Police v Greaves

[1985] AFPDT 3

fi9gfj fIGPDT 3

IN THE FEDERAL POLICE

No . FPDT 4 of 1984

DISCIPLINARY TRIBUNAL )

THE COMMISSIONER OF POLICE

against

SERGEANT ROSS EVAN GREAVES

FINDINGS

Member Mr R .J . Cahill, S .M.

The Tribunal finds that Sergeant Ross Evan Greaves is not

guilty of the disciplinary offence alleged in charge 30/8384 namely:

"At Launceston in the State of Tasmania on or about

2 March 1983 being the driver of a motor vehicle

registered number ZUE 090 the property of the

Commonwealth he did drive the said motor vehicle

in the grounds of North Lodge Motel situated at

Brisbane Street, Launceston in such a manner that

he did negligently cause damage to the motor

vehicle, being property belonging to the Commonwealth

and made available for use of the said Ross Evan Greaves".

1"-(,,'-cv~ti ./ / '1 1— ,

IN THE FEDERAL POLICE )

DISCIPLINARY TRIBUNAL )	No . FPDT 4 of 1984
THE COMMISSIONER OF POLICE

against

SERGEANT ROSS EVAN GREAVES

JUDGEMENT AND REASONS FOR FINDING

The commissioner instituted proceedings against Sergeant Greaves by a

notice dated 10 February 1984 . The notice charges the member with a disciplinary

offence specified in paragraph 18(1)(a) of the Australian Federal Police

discipline regulations which in turn alleges a contravention of the provisions

of division 1 of those regulations ; namely, paragraph 1J0(c).

The notice specifies the nature and particulars of the alleged disciplinary

offence against Sergeant Greaves in the following terms,:

"At Launceston in the State of Tasmania on cir about

2 March 1983 being the driver of a motor vehicle

registered number ZUE 090 the property of the Commonwealth

he did drive the said motor vehicle in the grounds of

North Lodge Motel situated at Brisbane Strut, Launceston

in such a manner that he did negligently cause damage to

the motor vehicle, being property belonging to the

Commonwealth and made available for use of the said

Ross Evans Greaves ."

Paragraph 10(c) provides in its relevant part : "A member shall not wilfully or negligently waste or cause any loss or damage to any property belonging to

the Commonwealth and made available to or for the use	off a member of the
Australian Federal Police ."

In my view the relevant elements to be established bdy the commissioner

are :

(a)	the proof of negligence;
(b)	that the negligence caused the damage ailleged;

. . .2/-

(c)	that the property in question belonged to the Commonwealth; and
(d)	that the property was made available for the use of the member.

The key question in this case is obviously : Did the member act negligently.

in his driving and management of the motor vehicle in question on the evening in question in the ground of North Lodge Motel in Launceston, Tasmania? All

other elements, whilst they must be proved, have never been seriously contested

by either party on the evidence before me.

It is now well established that the commissioner bears the onus of proof

before the Tribunal and the standard of proof is that outlined in SCANES v

WILSON 3 ACTR 20 at 26 as follows:

"I should say, in fairness, that in my view the Board used too always a matter which influences the mind when applying that standard . In Re the Appeal of Arthur James Sharp (No 108 of 1961), Kinsella J, who was then the Chairman of the Crown Employees' Appeal Board, said : "The onus of proof before this Board - of the several charges against the appellant rests upon the Commissioner, and the standard of proof is to be measured by the following passage from the judgment of Dixon J, as he then was, in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 ; (1938) ALR 334 at 342 :

high a standard of proof when it applied the criminal standard,

of proof beyond reasonable doubt . The proceedings were of course

disciplinary and not criminal (see R v MINISTER of STATE for the

INTERIOR (1972) 20 FLR 449 at 461-2) . The standard of proof

in disciplinary proceedings against legal practitioners is on

a balance of probabilities (Ex parte Attorney-General for the

Commonwealth ; Re a Barrister and Solicitor (1972) 20 FLR 234,

and cases there cited) . The Board was of the view that it was

following precedent established in the States, but I have made

inquiries and I find that the Crown Employees' Appeal Board in

New South Wales, which deals with police appeals, among others,

applies the civil standard of proof on a balance of probabilities

(see, for example, Brent and Drooger v Commissioner of Police,

'Except upon criminal issues to be proved by the prosecution,

it is enough that the affirmative of an allegation is made

out to the reasonable satisfaction of the tribunal . But

reasonable satisfaction is not a state of mind that is attained

or established independently of the nature and consequence of

the fact or facts to be proved . The seriousness of an allegation

made, the inherent unlikelihood of an occurrence of a given

description, or the gravity of the consequences flowing from a

particular finding are considerations which ,must affect the answer

to the question . whether the issue has been proved to the reasonable

satisfaction of the tribunal .'" per Fox J.

• Negligence in the context of this case requires a significant departure from the standard expected of the reasonable and prudent driver in all the attendant circumstances in relation to Sergeant Greaves and his driving and parking

performance on the night in question . Such departure, of course, would have

to be proved to the relevant standard set out above.

Sergeant Greaves in March 1983 was a sergeant stationed in Hobart with various

duties that have been outlined to me by Chief Inspector Connell and Sergeant Greaves

himself . It was obvious he was an officer heavily burdened with many and varied

duties requiring, on the evidence . working150 hours overtime in the several

months prior to the incident . His work performance and varied duties are set

out in the exhibit produced by Chief Inspector Connell stetting out the overtime

that he had worked in the relevant period ..

•

On 2 March 1983 he travelled to Launceston from Hobart, departing in the early hours of that day . He arrived at Launceston and performed duty until about 2 pm. At that time, having been given permission to work a split shift, he rested until about 7 pm, at which time on duty, he proceeded to the Launceston casino . He

remained there between 7 pm and approximately midnight . . During the period he performed intelligence and surveillance functions . He fiurther had a meal and on his own evidence consumed two glasses of wine with diruner and between six to

ten eight ounce glasses of beer from dinner_ to 11 .30 pm <<ahen he left the casino.

He drove from the casino back to the motel where he wns staying . He had

noticed nothing unusual, certainly not noticed the presernce of oil on the floor

or anywhere else in the vehicle . He reached the motel•amd there was confronted .

with a necessity to park his vehicle in an underground garage area . At that

time he said he felt tired but claimed he felt no effects of the alcohol he

had consumed . He then performed the parking manoeuvre out of which these

charges arise.

Before proceeding to consider the driving manoeuvre of the member, it is

necessary to make some comment about the evidence as to the conditions prevailing at the accident scene . I have not personally visited the scene but was assisted by descriptions of various witnesses, a plan prepared by Sergeant Davies and a

number of photographs that adequately depict the prevailing conditions and slopes

cambers and other matters arising at the scene.

It is clear at the time the manoeuvre was performed the lighting conditions

were poor . The space to manoeuvre the vehicle was confined, the gradient of the parking area involves a steep slope in two different directions and the width of the parking area between a wall and a concrete post is limited in relation to

the width of the vehicle concerned . The vehicle itself was a powerful 5 .8 litre motor vehicle . It was responsive to acceleration and very heavy on the steering at low speeds.

The sergeant entered the parking area travelling along the boundary wall depicted

in the plan and commenced to do a right hand turn manoeuvre going frontward into the garage area . In that manoeuvre he failed to allow sufficient space and the rear near side of the vehicle, around the rear wheel arch, came into contact

with the side wall of the garage space.

The sergeant realizing his difficulty attempted to reverse the vehicle and in

reversing he was required to move the vehicle down the steep slope . He claims

that in the reversing process his foot slipped from the brake onto the accelerator

and the vehicle collided with the rear boundary fenced At that time Sergeant Greaves

believed his foot slipped due to his failure to place his foot squarely on the

appropriate pedal.

He attempted to accelerate up the steep slope on to a flat area nearing the

entrance of the garage space . He performed that manoeuvre and when the car

was about one third to on quarter inside the building line of the garage space

he attempted to brake . At that time the sergeant claims his foot slipped from

the brake pedal and jammed onto the accelerator pedal causing the car to

lurch suddenly and collide with the front wall.

At the scene the sergeant says that he was not totally aware of the cause

of the last collision but concluded that it may have been the heel/toe movement

he was using to move his foot from accelerator to brake.

The car was then brought to a stop by the collision . The sergeant placed it in the 1 appropriate gear, left the vehicle, made a very brief inspection of damage and considered at that time the damage to be only superficial.

Feeling tired and not wishing to do anything further at the scene he entered

his motel room and shortly afterwards contacted his regional commander,

Chief Inspector Connell in Hobart . He had a brief telephone conversation with

Chief Inspector Connell wherein he reported the collision and stated that the

damage was only superficial involving a scrape along the side . Chief Inspector

Connell inquired as to whether he could continue the task in Launceston.

Sergeant Greaves indicated he could and the conversation concluded.

Sergeant Greaves states he had difficulty sleeping, consumed some more beer

and then rested at his motel . The following morning, on inspection, he discovered

the car in the garage space was damaged more than he had at first considered.

He was able to drive the vehicle to the Launceston headquarters of the Australian

• Federal Police, a short distance away, without any problem . The sergeant is uncertain at this stage whether he noticed any oil on tihe vehicle or anywhere in the vicinity of the vehicle.

At Launceston Headquarters Acting Sergeant Davies of the local Australian

Federal Police contingent noticed the sergeant to be ashen and shaken and was

concerned about Sergeant Greaves' condition . Sergeant Davies performed a

preliminary investigation into the incident and also arranged medical examinations

for Sergeant Greaves . Sergeant Davies himself, due to illness, was unable to

give evidence before the tribunal ; however, his statement was admitted by consent

as exhibit .

Sergeant Davies states that he discovered at the pc]ice station at Launceston on that morning the presence of an oily substance on the driver's floor of the vehicle . He states on page 3 of his statement:

"The slippery condition of the accelerator "end brake

pedals were investigated . A quantity of substance which

was of the same consistency, appearance and taste as sump

oil was found on the floor of the vehicle ins front of the

drivers seat and on the rubber pad of the break and accelerator

foot pedals ."

Following the medical examinations of Sergeant Grea,es, he was declared

by a medical officer to be unfit for duty and for driving . He was then taken

•

back to Hobart. The vehicle in the next day or so was also transported back to Hobart.

In Hobart, some two days following the incident, the! vehicle was examined by. Mr Biega and Mr Witcombe of the Department of Administrative Services mechanical department in Hobart . Both of those witnesses indicated on their examination

they could find no presence of any oily substance on either brake or accelerator

pedals . However, they described an oily substance both, on the mat underneath

the drivers feet and also in the vicinity of the side bottom of the door on the

drivers side.

In the hearing before the tribunal much was made of the conflict between the

findings of Sergeant Davies and the findings of the two ;mechanical witnesses

•

mentioned . I did not find it strange that there is some! conflict in that

evidence . After all, Sergeant Davies examined the vehicle withon hours of the

occurrence and we have no detailed evidence of what happened to the vehicle, who

handled the vehicle and other matters of that nature between the time of the

incident, when these two witnesses came to examine it.

I find it, on the evidence before the tribunal, impossible to exclude the

hypothesis that oil was in the vicinity of the drivers 'Tint and on the relevant

pedals as mentioned and indicated by Sergeant Davies in this report.

Various investigations then followed . Sergeant John Jennings was instructed

to investigate the circumstances surrounding the incident in Launceston . In

relation to that investigation some serious comment needs to be made . It

transpired during the hearing that I asked Sergeant Jennings why he had not

directed any questions to Sergeant Greaves as to the possible consumption of

alcohol or otherwise on the night in question . It seemed to me that possibility

at least should be excluded where an officer has attended a place like a casino

where alcohol would normally be consumed.

I was surprised when Sergeant Jennings indicated to me he had been instructed

by Chief Inspector Connell not to pursue the question of alcohol in his investigation

of the accident . At the time this information came to my knowledge Chief Inspector

Connell had left the Australian Federal Police and had already been called as a

witness and excused . I find it amazing that a full investigation of the circumstances

of an accident in a police vehicle would not involve the consideration of any

possible consumption of any alcohol.

I have paraphrased the explanation of Sergeant Greaves as to how this accident

occurred . Sergeant Greaves, with some minor exceptions, has been reasonably

consistent in the various accounts he has given in respect of occurrences at the

accident . One matter of some discrepancy in the question of whether his foot

slipped on the first occasion in the reversal procedure . In some accounts he

has indicated no evidence of slipping, in others he has.

Of course, the description given to Chief Inspector Connell immediately after

the incident was of necessity brief and certainly was not in my view to be

taken as a real and considered explanation of the accident by Sergeant Greaves.

The question of tiredness, stress and the possible effects of alcohol need to

be looked at as a possible explanation in this matter . The evidence I have before

me on the question of alcohol is simply the evidence from Sergeant Greaves himself,

voluntarily provided by Sergeant Greaves initially in answers to questions

somewhat belatedly directed to him by Chief Inspector Connell as to his alcohol

consumption that night and elaborated upon by him at the hearing.

On this question I found Sergeant Greaves to be frank and honest and he has

been relatively consistent about his alcohol consumption since he was first asked

up until the time he have evidence before me several days ago . Of course, I

can apply my commonsense to the matter and there is no doubt the consumption

of any alcohol has some effect on any person . In this case however, the

sergeant had consumed the alcohol, which is a reasonable amount, over a period

in excess of five hours and during that period had also had a meal . He would

certainly have been affected to some degree by the alcohol consumed but on the

evidence before me'I find that a precise opinion would be mere speculation.

I find that net effect of all of the evidence about the effect of alcohol

upon the member at the time of the accident inconclusive in my judgment. the alcohol consumption of the member as of particular negligence.

Perhaps if the matter had been pursued expeditiously at an earlier point in

time that evidence may have been of more value to the tribunal in its assessment.

There are cases where a significant consumption of alcohol could lead to the conclusion that a person would be negligent in even attempting to drive in that condition cf . O'Hara v O'Keefe (1959)76 WN (NSW) 546 . On the evidence before me I cannot find that such a situation exists in this case.

Extreme stress, tiredness and exhaustion, if it is known and appreciated by.

a driver, can in itself amount to evidence of negligence cf .. Brown's Traffic Offences page 140 paragraph 8 .15 . Certainly Sergeant Greaves was tired, was under stress, and there is quite an amount of evidence about the additional work he had been performing, the onerous duties and things of that nature.

But I am not satisfied that his condition was such that in itself it could amount to negligence to merely. drive a motor vehicle in his condition.

All of these matters have to be considered in looking at the explanation for the accident . On all of the evidence I cannot exclude the explanation given by Sergeant Greaves as to the cause of the accident . There is no doubt that the

initial manoeuvre whereby he came into contact with the side wall grazing the

wheel arch on the near rear side was an error in calculation and judgment.

However, that error in calculation and judgment must be looked at in the context

of the difficult parking conditions, the tight and confined spaces, the heavy

handling of the vehicle, the power of the vehicle, and the obvious poor lighting

conditions that prevailed on the night in question . That error of judgment in

my view in itself is insufficient to amount to negligence in the terms I have

mentioned . " .

The second collision of course involves the reversing procedure, which in

itself was appropriate . I could not exclude that in fact the oil on the pedals

of the accelerator and the brake played some considerable role in the sergeant

reversing into the rear wall.

The description by the sergeant of his actions prior to the third collision

needs examination . According to Sergeant Greaves on his evidence before the

tribunal he had accelerated the car up the slope close to the flat part of the

parking area to a situation where the car was on third to one quarter inside

the garage area . At that time he thought it appropriate to brake and attempted

to brake . His foot slipped from the brake pedal and jammed onto the accelerator

causing the car to lurch forward and cause the collision.

I cannot exclude this as a cogent explanation for what occurred . The presence

of the oil and the effect of that oil on braking manoeuvres in my view was

unforeseen and unknown to the sergeant on the evidenceH before me . I find on the

evidence this to be an operative and effective cause oif this particular accident.

In short, I cannot be satisfied that the damage to the vehicle was caused

by the negligence of the member which is an element to be proved before the

offence against paragraph 10(c) of the Regulations is .,established.

I find Sergeant Greaves not guilty of the disciplirmary offence charged.

I order that the Commissioner pay the costs of the : member relating to these proceedings . The quantum of these costs are to be agreed between the parties. Failing such an agreement I grant leave for the mattes to be re-listed before

me .

R .J . SHILL,:S .M.

Member

7 February, :8985

(Delivered orally on 0 August, 1984)