Commissioner of Police v Roberts

[1987] AFPDT 2

IN THE FEDERAL POLICE	1
) No. 9 of 1986
DISCIPLINARY TRIBUNAL	)

COMMISSIONER OF POLICE '

Against

SENIOR CONSTABLE PETER

FIiANC IS RDBERTS

IN THE MATTER of the Complaints (Australian Federal Police) Act 1381.

TRIBUNAL : Mr. Justice Jenkinson, Deputy President

DATE : 10 April, 1987

The Tribunal finds that Senior Constable Peter Francis Roberts is guilty of the breach of discipline alleged in the notification AFP3f8687 dated 29 September, 1986.

The Tribunal imposes in respect of the said breach of

discipline the penalty that the annual rate of salary of Senior Constable Peter Francis Roberts be reduced to the lowest annual rate of salary payable to members of the Australian Federal Police holding the grade of Senior Constable within the rank of Constable.

uty President

IN THE FEDERAL POLICE

)

) No. 3 of 1986

DISCIPLINARY TRIBUNAL

1

COMMISSIONER OF POLICE

Against

SENIOR CONSTABLE PETER

FRANCIS HOBERTf

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

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10 April, 1387

MR. JUSTICE JENKINSON

Deputy President

REASONS FOR DECISION

The Disciplinary Tribunal has for decision proceedings against Senior Constable Peter Francis Roberts in respect of a breach of discipline constituted by his improper conduct in his official capacity.

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The disciplinary offence charged was:

"That on or about the 15th day of July 1985, at Melbourne in the State of Victoria, you the said Peter Francis ROBERTS, a member of the Australian Federal Police, were guilty of improper conduct in your official capacity in that you did intimidate and deny access to legal representation to Adam Musaka JAFFERS, a person in the custody of the Australian Federal Police."

The proceedings were instituted in pursuance of Regulation

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lg~(l)(a) of the Australian Federal Police (Discipline) Requlations, giving effect under s.ll(4) of the Complaints (Australian Federal Police) Act 1981 to a proposal put by Deputy

Commissioner Charles Johnson to the Ombudsman. Having been instituted as a result of an investigation of a complaint that was referred to the Internal Investigation Division under s.6 of that Act, the proceedings are required by s.67(l)(b) thereof to be heard and determined by this Tribunal.

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Senior Constable Roberts admitted his guilt of the disciplinary offence charged, which is a contravention of Regulation 18(l)(d) of the Australian Federal Police (Discipline) Requlations, and the question for decision is what is the appropriate penalty.

The disciplinary offence was committed at the Melbourne

Airport. Senior Constable Roberts had been stationed at the

airport since February 1981. Since January 1983 he had been

acting in the rank of Sergeant. During the evening of 15 July

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1985 two young men were observed entering a car parked in an airport car park by a Constable who called other police to the scene by radio. Senior Constable Roberts was one of those who came to the car park and who there observed the two young men in the car. The two men were apprehended and taken to the airport police station where they were separately interviewed. Senior Constable Roberts was in charge of the police concerned. None of the three Constables who conducted the interview with one of the men, Adam Musaka Jaffers, had previously conducted an interview recorded by typewriter with a person suspected of having committed

an offence. They told Senior Constable Roberts that. He provided them with a copy of a "record of interview", as a model of what should be done. He also entered the room in which Jaffers was being interviewed on a number of occasions, and on other occasions he conferred outside that room with one of the three Constables engaged in interviewing Jaffers. Before the interview commenced Jaffers indicated that he wished to arrange for a lawyer to be present when he was questioned. Senior Constable Roberts told him that he could not have a lawyer present. During the interview

L Jaffers admitted entering without permission the car in which he and his companion had been observed, but he did not admit an intention to steal from the car. His answers to questions tended to minimise his culpability by denying that he had formed any intention to commit an offence before entering the car. Both before and during the course of the interview, when Senior Constable Roberts was in Jaffers' presence, Roberts spoke in harsh, offensive and threatening terms to Jaffers on several occasions, telling him that he must tell the truth and

ii characterising the exculpatory statements Jaffers made as

"bullshit". Senior Constable Roberts' answer to the question numbered 124 in a typed record of an interview on 24 September 1985 between Roberts and members of the Internal Investigation Division asserts Roberts' belief that Jaffers "realised that, as I was a more senior member who obviously had a good deal more experience than the young Constables conducting the interview, he would not be able to pull the wool over my eyes". The evidence before the Tribunal does not clearly establish that Jaffers was coerced by Roberts' conduct to make an admission which he would not have made if Roberts' conduct had not been improper, but the

evidence does establish that Jaffers was frightened by that conduct and that his fear was of physical violence. It appears, however, that by the time the interview with Jaffers was about to conclude Jaffers was not greatly frightened. To the question (numbered 54 in the record of the interview) whether any threat, promise or inducement had been made or held out to him to answer the questions put during the interview Jeffers replied : "There was no threat to answer the questions, but I was threatened to tell the truth". When asked what he meant, Jaffers replied (answer to the question numbered 55) : "Verbally Sergeant Roberts threatened me". Roberts was then asked by one of the interviewing Constables what they should do about those complaints by Jaffers. Roberts instructed the Constable that whatever complaint Jaffers made should be recorded in the record of interview. And accordingly that was done, with the result that the procedures ordained by s.6(1) of the Complaints (Australian Federal Police)

Aft 1981 were instituted.

The representation of the Commissioner with respect to penalty, made pursuant to s.67(5) of the Complaints (Australian Federal Police) Act 1981, was for dismissal of Senior Constable Roberts from the Australian Federal Police.

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Any intimidatory conduct by a policeman towards a person

with whom he is dealing in his official capacity is seriously

improper. To intimidate an adolescent who is in custody and under

interrogation concerning an allegation of crime is to engage in

very grave impropriety.

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5.

Jaffers was born on 13 March 1367. He had been convicted of theft in April 1985 and had been on several other occasions since he was thirteen questioned by police. The evidence establishes that Jaffers feared physical violence, but I am not persuaded that Jaffers was greatly frightened, nor that Senior Constable Roberts supposed that his conduct was greatly frightening Jaffers, nor that Roberts intended greatly to frighten

Jaf f ers .

b	Incivility to other members of the Australian Federal Police on Senior Constable Roberts' part had been noted more than once in his superiors' assessments before July 1985. His entry into the Australian Federal Police and his exposure to training
for membership and for advancement to higher rank occurred after he had passed the age of thirty and he was not perhaps as susceptible to the civilizing influence of that training as a much younger man might have been. The circumstances disclosed by the evidence suggest that his treatment of Jaffers was a manifestation of ill-tempered, uncouth exhibitionism rather than of purposeful
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manipulation of an offender to compel incriminating admissions. The Tribunal had the considerable benefit of evidence by Inspector Haley concerning Haley's appraisal of Senior Constable Roberts. Upon that evidence the Tribunal concludes that Roberts has brought to his service in the Australian Federal Police a dogged determination to meet the requirements of that service, notwithstanding a limited capacity for study, that he has consistently exhibited steadiness and courage in the face of physical danger, and that he has been ready to acknowledge his faults when they have been pointed out to him by his superiors.

Each of those qualities is in the Tribunal's opinion valuable in a policeman as well as indicative of moral worth. Perhaps more important in a consideration of the proper penalty for this breach of discipline was the evidence that in the course of his service at Melbourne Airport Senior Constable Roberts had consistently exercised compassion in his dealings with the distressed and the indigent who frequent the airport, and that he had worked hard to ensure that effective arrangements were made for helping such people. The gravely culpable disregard of the rights and feelings of Mr. Jaffers which Roberts exhibited may in the light of that evidence be judged not to have proceeded from a general insensitivity to, or disregard of, the interests and feelings of

others, but from attitudes to offenders against the criminal law which can be changed. The Tribunal is persuaded that Senior Constable Roberts has realised how grossly his conduct violated the standards required of a member of the Australian Federal Police, and that he will be able to hold a place in that body only if he can accord to all other persons with whom his duties bring him into contact the respect and consideration which he has in the past accorded to those whose misfortunes have excited his compassion.

The intimidation of a suspect by a member of the Australian Federal Folice is a disciplinary offence which naturally suggests a strong deterrent and denunciatory response, so grave are the evil effects which intimidation of that kind is likely to have on the public reputation and standing of the police. There may have been a time, not so long ago, when those responsible for police discipline in some parts of this country -

I am not referring to a Commonwealth police force - were moved to

take exemplary deterrent measures against intimidation when it was proved because of a feeling that what was proved was only a small proportion of what was occurring, and because of a feeling- that misguided sentiments,of solidarity and loyalty among members of a

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police force were preventing proof of what was occurring. It is a

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source of considerable satisfaction to the Tribunal that in this

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case both the offender himself and the other members who were

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involved in the events which resulted in the laying of the sharge

showed exemplary frankness and a willingness to tell the truth, whatever the consequences. The prompt exposure and frank admission of the offence encourages the Tribunal to think that the need is not so exigent of a generally deterrent punishment that the Tribunal cannot afford to give full weight to considerations in favour of mitigating punishment.

In all the circumstances the Tribunal considers that the

appropriate penalty is that the annual rate of salary of Senior

Constable Roberts be reduced to the lowest annual rate of salary

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payable to members holding the grade of Senior Constable within

the rank of Constable.

I certify that this and the 7 preceding pages are a true copy of

the Decision and Reasons for Decision herein of The Honourable Mr.

Justice Jenkinson Deputy President.

Signed :

Dated: 10 April, 1987 Associate