Commissioner of Police v Huxtable

[1986] AFPDT 3

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IN THE FEDERAL POLICE

DISCIPLINARY TRIBUNAL No . 6 of 1985

THE COMMISSIONER OF POLICE

against

CONSTABLE DAVID GEORGE HUXTABLE

Member :	Mr . K .P . Duggan, Q .C.
Date :	23rd May, 1986

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DECISION

THETRIBUNALFINDS that David George HUXTABLE, a member of the Australian Federal Police, is guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian

Federal Police (Discipline) Regulations, namely that at improper conduct otherwise than in his official capacity in

that on 12 November 1984 he telephoned Australian Federal

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Police Headquarters (Melbourne) and stated to Keith James Commissioner of Police for the imposition of . a penalty in respect of the breach of discipline in respect of which the member has been found guilty .

HOWARD, a member of the Australian Federal Police, "The

Turkish Consul General is fucking dead ."

REGISTRAR

IN THE FEDERAL POLICE

DISCIPLINARY TRIBUNAL No . 6 of 1985

THE COMMISSIONER OF POLICE

against

CONSTABLE DAVID GEORGE HUXTABLE

REASONS FOR DECISION

MR . K .P . DUGGAN, Q .C .

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Constable David George Huxtable, a member of the

Australian Federal Police, appeared before me charged with improper conduct otherwise than in his official capacity

contrary to paragraph 18(1)(d) of the Australian Federal follows :-

" That you the said David George HUXTABLE, a

member of the Australian Federal Police, were

guilty of improper conduct otherwise than in your

official capacity, in that at Melbourne in the

State of Victoria on 12 November 1984, you

telephoned Australian Federal Police Headquarters

(Melbourne) and stated to Keith James HOWARD, a

member of the Australian Federal Police, 'The

Turkish Consul General is fucking dead' ."

The facts fall within a narrow compass . On the morning of 12 November 1984 Constable Keith James Howard was on duty in the Communications Section of the Australian Federal

Police Southern Region Headquarters in Melbourne . At the relevant time he was operating the telephone switchboard installed at the headquarters . The switchboard contains 15

telephone lines ; the directory number and 14 auxilliary

lines . If the directory number is dialled the call may come

through on any of the 15 lines depending upon the number of calls being made to and from the headquarters at that time. Each of the auxilliary lines has its own telephone number,

but these are not listed in the directory.

At 8 .47 a .m . Constable Howard answered a call which

came through on line number 2 . The caller said, "The Turkish recognise the voice but concluded it was that of a male person affected by alcohol . The caller said nothing further and Constable Howard transferred the call to an extension at

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a desk in the same room. He satisfied himself by Listening in at the extension that the caller had not hung up and he

then contacted the Telecom authorities on another telephone

and requested that the call be traced . According to the

evidence presented on behalf of the Commissioner of Police,

the call was eventually traced to a telephone installed in a

flat occupied by Constable Huxtable and a male flatmate.

Constable Huxtable was listed in Telecom records as the subscriber.

The accuracy of the tracing procedures is crucial to a resolution of the matters in dispute and I find it necessary to summarise in broad outline the evidence of Constable

Howard and the Telecom technicians who gave evidence . The switchboard is operated from a console which is connected to a P .A .B .X . system located in a nearby room . The console enables the operator to make and answer calls and transfer them to extensions . The steps taken by Constable Howard to transfer the call on the occasion in question are described in his evidence as follows :-

"The way I did it was I brought the line in so it

flashed and I could hear what was said . I then

dialled the extension on the right hand side of

the board on the keys . A green light illuminated

on the right hand side of the control panel, the

switchboard panel, to indicate the line had

successfully gone through to the extension I

dialled . I heard the phone ring ; I walked over ; I

lifted up the receiver ; I heard the line was

there ; I placed the receiver down and walked back

to the switchboard and then called up another

line . "

I was impressed by Constable Howard as a witness and I find that he carried out the procedures necessary to

transfer the call to the extension with appropriate care .

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knew Constable Huxtable prior to the incident and had spoken

to him often . However, he said in evidence that he would not Huxtable within a week of the call that the called did not sound like Constable Huxtable . However, he maintained in evidence that he did not know whether it was Constable Huxtable or not and I must take into account the fact that the voice was that of a man apparently affected by alcohol. Naturally this would not assist the chances of identification.

necessarily recognise Constable Huxtable ' s voice over the

telephone . When it was put to him in cross-examination,

It is my view, however, that the evidence establishes beyond reasonable doubt that Constable Howard succeeded in

transferring the call to the extension and that the caller

did not hang up before the transfer was effected . I can find

no evidence to support a reasonable possibility that a

malfunction of equipment or human error may have thwarted

the attempt to transfer the call.

Following Constable Howard's request, Telecom

technicians began to trace the call . Evidence was given that leave the line open for tracing purposes simply by

a facility known as "last party release" was available on

the lines installed at the Australian Federal Police

refraining from replacing the receiver or otherwise

terminating the call . The calling party is deprived of the

means to "close" the line .

According to the evidence of John Henry Dunkley, a Telecom employee, the tracing procedure commenced at the

Russell exchange in the city . The police switchboard is

connected to this exchange . Mr . Dunkley said he identified line and traced it backwards to the caller's number . The

the Line the call was on and confirmed that it was the

second line of the police switchboard . He then followed the

path of the call through to the stage where he was able to

ascertain that it emanated from the Coburg exchange . He then

contacted the Coburg exchange and the witness, Lee Michael

procedure was then checked by the technicians from the two exchanges talking to one another from each end of the line.

The equipment at Police Headquarters had been serviced for some months prior to the incident by another technician, Christopher Gundy . Mr . Gundy gave evidence of some fuses in the P .A .B .X . section blowing from time to time, but there

was nothing in his evidence which would raise any concern or

suspicion that the equipment had malfunctioned on the

occasion of the call so as to cast doubts on the efficacy of

the attempt to transfer it to the extension or render

unreliable the tracing evidence.

Mr . Gilbert, for the member charged, cross-examined

the technical witnesses very carefully on the procedures

adopted and I have subjected this evidence to close

scrutiny . However, I am satisfied beyond reasonable doubt

that all the relevant equipment was functioning correctly

at the time of the telephone call, its transfer to the

extension and during the tracing procedures and that these

procedures were carried out carefully and expertly .

D -

Constable Huxtable gave evidence before me . He stated the charge included surveillance of diplomatic missions . He had been involved in this type of work_at the Turkishthat he joined the AustraLian Federal Police in January

1984 . He said he had not been charged with an offence of any

nature before and I have taken this indication of good

character into account in assessing his evidence . He

explained that part of his duties since his arrival in

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Constable Huxtable said he had been on night shift during

part of the evening of 11 November 1984 and the early

Consulate more so than at other diplomatic missions. home to his flat . He made two telephone calls to Australian

Federal Police Southern Region Headquarters that morning.

One was about 7 .30 a .m . and the other between 8 a .m . and 9

a .m ., but closer to 9 a .m . On both occasions he spoke to a

Sergeant Wells . On the first occasion he asked if a hat

which he had left on top of his locker could be placed

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inside it and on the other occasion he asked if he could

extend the time for handing in a form.

The member stated that he had two glasses of Bacardi

Rum and Coke to drink between the time he returned home and when he retired to bed at approximately 9 a .m . He explained that this was for the purpose of enabling him to go to sleep

more easily . He said his flatmate left at 8 a .m . and he

(Constable Huxtable) was then alone in the flat . He strongly

denied the allegation that he made the telephone call which

is the subject of the charge and he claimed to have had no

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motive for such an action . He also denied making the call

when questioned on two occasions after the incident by

Australian Federal Police ofEicers.

I have given appropriate consideration to these sworn denials and, as I have said, I have analysed the evidence

closely in order to ascertain whether it allows the

possibility of some error or malfunction of equipment

resulting in the call being mis-traced . However, in my view,

no such possibility is open on the mate_gial before me . Apart

altog ether from the technical evidence weighing against such

an occurrence taking place at all, it would seem an

extraordinary coincidence if human error or equipment

malfunction or a combination of both should lead the Telecom

technicians to the telephone of Constable Huxtable if he was

not making a call to his headquarters at the relevant time.

Furthermore, there is no support for the suggestion that a

crossed line or other similar malfunction could have

contributed to an incorrect tracing result . Constable

Huxtable said in evidence that there was no interruption in

the course of his two telephone conversations with Sergeant

Wells and he (Constable Huxtable) replaced the receiver

after each call . In two statements tendered and admitted by

consent (Exhibits P9 and P10), Sergeant Wells states that

the conversations were completed on each occasion and there

was no interference with the connection . It should also be

noted that Sergeant Wells estimates the times of the

conversations to be approximately 7 .30 a .m . and between 8

a .m . and 8 .30 a .m . respectively .

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On the whole of the evidence before me I am satisfied beyond reasonable doubt that the call was made from the flat

jointly occupied by Constable Huxtable at approximately 8 .47

a .m . on 12 November 1984 . At that time Constable Huxtable

was the only person at home . I am satisfied beyond

reasonable doubt that Constable Huxtable made the call in

question . I am of the view that this is the only rational

inference which the circumstances as disclosed by the

evidence enable me to draw (Plomp v . The Queen (1963) 110

C .L .R . 234 @ p . 252).

It remains for me to consider whether such an action

answers the description of improper conduct otherwise than

in the member's official capacity . I have no doubt that it

does . The expression "improper conduct" is of wide import

(cf . Hardcastle v . The Commissioner of the Australian

Federal Police and the Federal Police Disciplinary Tribunal

(No . A .C .T . G5 of 1983) . I doubt that the communication was

intended as a threat . It would seem that it was more in the

nature of a mischievous exercise . However, coming from an anonymous call, its improper nature is readily apparent.

I find the charge proved beyond reasonable doubt and

refer the breach of discipline to the Commissioner for

penalty .

K .P . DUGGAN, Q .C.

Member