Commissioner of Police v Rosevear, G

Re: COMMISSIONER OF POLICE
And: CONSTABLE GLEN ROSEVEAR
No. ACT G80 of 1990
FED No. 517
Police
(1991) 31 FCR 166

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Beaumont(2) and Von Doussa(3) JJ.

CATCHWORDS

Police - Discipline - Member found guilty of various disciplinary offences - Penalty of dismissal - Appeal to Federal Police Disciplinary Tribunal - Penalty reduced to reduction in salary - Appeal to Federal Court on ground that penalty inadequate - Nature of proceedings for breach of discipline - Nature of appeal to Federal Court - Whether ground for intervention of court established.

Complaints (Australian Federal Police) Act 1981 (Cth), s.79(1A)

Australian Federal Police (Discipline) Regulations, reg.22(1)

HEARING

CANBERRA

#DATE 28:8:1991

Counsel for the Applicant: Mr C.M. Erskine

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr R. Livingston

Solicitor for the Respondent: Snedden Hall and Gallop

ORDER

The appeal be dismissed.

The applicant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, the Commissioner of Police, has applied to the Court by way of appeal pursuant to s.79(1A) of the Complaints (Australian Federal Police) Act 1981 (Cth) ("the Complaints Act") from a decision of the Federal Police Disciplinary Tribunal established by s.54 of that Act imposing on Constable Glen Rosevear ("the respondent") a penalty for breaches of discipline. The penalty imposed was to reduce the respondent's annual rate of salary from his then current rate of salary as a fifth year constable to the amount of the annual rate of salary appropriate for a second year constable. The ground of the application to the Court is that the penalty imposed is inadequate.

On 27 March 1990, the respondent was charged with a number of disciplinary offences, being offences specified in reg.18(1) of the Australian Federal Police (Discipline) Regulations. Under the provisions of the Complaints Act, those charges were required to be heard by the Federal Police Disciplinary Tribunal. The Tribunal hearing those charges, and related charges against two other constables arising out of the same set of circumstances, was constituted by Mr B.R. Maguire, QC. The Tribunal as so constituted found the respondent guilty of certain of the disciplinary offences charged against him.
The charges arose out of certain incidents that occurred in the early hours of the morning of Monday, 5 December 1988. To appreciate what occurred it is necessary to refer in some detail to the findings made by the Tribunal that heard the charges.
On the Sunday evening, two groups of men were drinking at various places in Canberra. The first group included a man named Sandheim, who was employed in a managerial position at the Hyatt Hotel, and three of his subordinates, Messrs Pauline, Whitford and Fielding. The latter three were quite youthful, about 10 years or so junior to Mr Sandheim. They had been at an end of year party at the Hyatt Hotel, the theme of the party requiring that they be dressed as though at the beach. They left the party at about midnight and, after being at Manuka for some time, the four travelled to Civic, being driven by Mr Sandheim in a four-wheel drive vehicle owned by him. They continued the party at a place of entertainment at Civic until they left sometime after 4 a.m.
The other group consisted of the respondent and the two other constables. As the charges against one of those constables were dismissed, it is unnecessary to refer in any detail to his part in the events. References hereafter to "the other constable" are references to the constable who was found guilty of the same disciplinary offences of which the respondent was found guilty.
The three constables were not on duty. They had attended a barbecue. They drove their respective vehicles to Woden Valley Police Station and from there the three travelled to Civic in the respondent's vehicle. They attended an establishment in Northbourne Avenue where they drank liquor until the early hours of the morning. Later, they drove in the respondent's vehicle to another establishment but it was closed. They re-entered the vehicle with the respondent driving. Shortly after, the paths of the two groups crossed.
The respondent's vehicle emerged from a side alley and drove past the other group, "hurling abuse". The respondent turned his vehicle around once, or perhaps twice, to draw it closer to the other group. The respondent's vehicle stopped in East Row, a road that is not open to private motor vehicle traffic. The Tribunal considered that the respondent's presence in that road suggested a lawless attitude on his part.
The respondent and the other constable alighted from the vehicle in the near vicinity of the other men and confronted the group. Offensive words were used by one or other of the constables. A polite response by Mr Sandheim was greeted with a further volley of abuse.
Mr Sandheim directed his three younger companions to get into his vehicle and they did so. Mr Sandheim was thus left alone on the footpath confronted by the two constables. Mr Sandheim had in the vehicle a large and quite dangerous knife. He took that weapon out of the vehicle. The Tribunal found that he did so in response to what it found to be a series of aggressive acts on the part of the respondent.
The third constable joined the other constables who were then on the footpath. The three youthful members of the other group alighted from their vehicle. A general melee then ensued. The Tribunal was satisfied that Mr Sandheim had not been successful in using the knife if, indeed, that had ever been his intention. The Tribunal also found that the respondent had returned to his vehicle and armed himself with a "Krook-lok", a metal device for locking the steering mechanism of a motor vehicle, and had advanced on Mr Sandheim and proceeded to strike at him so as to disarm him. That behaviour on the part of the respondent was found by the Tribunal to amount to an assault upon Mr Sandheim. The Tribunal was of the opinion that, even if the respondent had been the victim of an attack, the proper course for him to have adopted was to depart the scene as he had the opportunity to do without exposing himself to any danger from the knife.
Following the melee at Civic, the constables re-entered the respondent's vehicle with the respondent driving. The other group, in Mr Sandheim's vehicle, preceded the former away from the scene of the Civic melee and drove to the Hyatt Hotel. Along Commonwealth Avenue, the respondent observed the other vehicle ahead of him and followed it on to the ramp leading to the loading dock beneath the hotel. The Tribunal disbelieved the reason advanced by the respondent for following the other vehicle into the hotel grounds, namely that he had done so in order to ascertain the registered number of Mr Sandheim's vehicle, and found that his action in following that vehicle was just a further act of aggression on his part.
The respondent drew his own vehicle to a halt very close behind Mr Sandheim's vehicle and alighted from his vehicle. The other constable also alighted from the vehicle and engaged in a further act of physical aggression involving Mr Pauline.
The Tribunal rejected the version of what initially took place in East Row, Civic that was given by the respondent to Detective Chief Inspector Cooper of the Internal Investigation Division of the Australian Federal Police on 7 December 1988 and that had been subsequently advanced by the respondent on oath before the Tribunal. The Tribunal also found that the respondent had failed to give to Sergeant van Akker at the Woden Valley Police Station on the morning of the events in question a full and frank account of what had taken place at Civic, the respondent suggesting that he was an innocent party in those events. The Tribunal also noted that the respondent had elected not to make any official report of the incident at Civic involving the knife or of any of the events that had taken place at the Hyatt Hotel.
The Tribunal found the respondent guilty of the following disciplinary offences -

(a) acting in a manner unbecoming a member of the Australian Federal Police in using insulting and offensive language to members of the public at Civic;

(b) improper conduct in assaulting Mr Sandheim at Civic by the use of a "Krook-lok";

(c) improper conduct in assaulting Mr Fielding at Civic;

(d) improper conduct in assaulting Mr Pauline at Civic;

(e) improper conduct in assaulting Mr Whitford at Civic; and

(f) improper conduct in assaulting Mr Pauline at the Hyatt Hotel.

Having observed that the question of punishing the respondent and the other constable was entirely a matter for the Commissioner in the first instance, the Tribunal said:

"In addition to the findings I have made so far, I would simply add that I am persuaded that, as between those two respondents, Rosevear led the way and that it was the unhappy circumstance that Rosevear was in the aggressive state of mind that he was that brought (the other constable) into conflict with the other group of men, both at Civic and at the Hyatt Hotel".

As the charges had been heard by a Tribunal constituted otherwise than by the President or a Deputy President, the Tribunal had no authority to impose a penalty in respect of the disciplinary offences found but was required to inform the respondent, in writing, of its findings in the proceedings and remit the proceedings to the Commissioner for the imposition of a penalty (Complaints Act, s.67(3)).
By virtue of reg.22(1) of the Australian Federal Police (Discipline) Regulations, it was open to the Commissioner to -

(a) reprimand the respondent;

(b) impose on the respondent a fine not exceeding an amount equal to the salary payable to the respondent for a period of 5 days at the rate at which salary was payable to him on the day on which the determination of guilt was made;

(c) reduce the annual rate of salary of the respondent to an amount per annum that was not lower than the lowest annual rate of salary payable to members holding the same rank as the respondent; or

(d) dismiss the respondent from the Australian Federal Police.

It was not possible for the Commissioner to reduce the respondent in rank, a penalty which would have been available if the respondent had held a rank higher than that of constable.

On 16 August 1990, the respondent was served with a notice informing him that the Commissioner considered that it might be appropriate, by way of penalty, to dismiss him from the Australian Federal Police and that the respondent might, within 14 days of the service of the notice, deliver to the Commissioner any written statement that he wished to be taken into consideration in deciding the appropriate penalty to be imposed on him.
The respondent delivered such a statement to the Commissioner on 31 August 1990. In that statement he submitted that it would be unfair and, therefore, inappropriate to impose a more severe penalty than a fine not exceeding an amount equal to the salary payable to the respondent for a period of 5 days. One of the matters that was said to support that approach was "all the circumstances of the incident". Not only was that submission quite unrealistic but it demonstrates that, even in the light of the findings made by the Tribunal, the respondent would not face up to the seriousness of the disciplinary offences of which he had been found guilty. All he would say was that "it was not acceptable conduct to be as intoxicated as I was in public".
In relation to the circumstances of the incident, the respondent referred to his state of intoxication at the time. In relation to the assault on Mr Sandheim with the "Krook-lok", he said that he "felt at the time, and still believe," that he was reasonably entitled to protect himself. He reiterated that Mr Sandheim's behaviour was as great a cause of the incident, if not more, than his own intoxication. He continued, notwithstanding the findings of the Tribunal, to deny having started the incident. He asserted that he had been struck by Mr Whitford, a matter as to which the Tribunal had made no finding. Indeed, it does not appear from anything said by the Tribunal that such an event was asserted before it as having taken place. He said that it seemed to him that the threat to him from Mr Sandheim with the knife was not taken seriously by the Tribunal "because I allegedly started the whole incident" and added:

"I can only assume that the Tribunal's refusal to accept the seriousness of the situation was based upon the Tribunal never being faced with the choices I had."

In addition, the respondent referred to his good record during his five years and four months in the Australian Federal Police and to four character references attached to his submission. One of those references was given by Sergeant A.F. Castle. It will be necessary to refer later in these reasons to that reference and to the oral evidence given by Sergeant Castle to the Tribunal.
By notice dated 6 September 1990, the respondent was informed that the Commissioner had imposed on him the penalty of dismissal from the Australian Federal Police, 12 October 1990 being fixed as the date on which the penalty was to have effect.
The respondent then duly gave notice of appeal to the Federal Police Disciplinary Tribunal against the penalty imposed upon him on the ground that the penalty was unduly severe. That appeal came before the Tribunal constituted by the President, his Honour Mr Justice Foster.
The respondent gave evidence before the Tribunal. His only explanation for the events in question was that "alcohol took over on that night". He said he felt sorry about the public response and the way in which the incidents had affected the name of the Australian Federal Police. When asked by his counsel whether he considered he had, or had had in the past, any problem in relation to the consumption of alcohol, the respondent replied:

"Yes, I would say I would, definitely more so at that stage. With the changing attitude of my friends and everything at the moment, due to this appeal, I have tended to curb my alcohol consumption a heck of a lot. My attitude has also changed whilst drinking, but at that particular point in time, yes, I agree I did have a big problem."

Asked whether, in his view, his drinking affected his capacity to perform his duties as a police officer, he answered:

"No, I do not believe it affected my duties as a police officer, no. No, whenever I - I took great pleasure in my duties as a police officer, and I would never allow alcohol to affect that."

In cross-examination, he said that he stood by what he had set out in the submission on penalty delivered to the Commissioner on 31 August 1990. He then gave the following evidence:

"Q. Do you still take the view which you expressed towards the top of the second page that, 'I felt at the time, and still believe, I was reasonably entitled to protect myself'? A. Yes, I do.

Q. And do you consider that what you did constituted reasonable protection of yourself?

A. Yes, I do."

In reviewing the penalty imposed by the Commissioner, the Tribunal accepted that the clear effect of the earlier findings was that the respondent "was in a highly aggressive frame of mind at all stages, that he initiated the whole disgraceful series of events on the footpath, and that, in continuation of his aggressive mode of behaviour, he pursued the other vehicle to its stopping place at the hotel and was party to further acts of aggression there". The Tribunal continued -

"Not to put too fine a point on it, he (the respondent) was obviously drunk and spoiling for a fight. The production of the knife by the man Sandheim did not in the circumstances call for the production of a weapon in self-defence, nor did the

(respondent) respond by way of self-defence. The production of the knife merely served to provoke further aggressive behaviour on the part of the (respondent)."

The Tribunal considered that the previous findings "provided ample warrant for the penalty of dismissal imposed by the Commissioner". Referring to the evidence given before the Tribunal by the respondent, the Tribunal said:

"I have heard evidence from the (respondent) himself. I am satisfied that he had wished to make a career in the Australian Federal Police and that before this incident he had discharged his duties satisfactorily and had not behaved in a manner such as to cause concern as to his fitness to be a member of the Force. He certainly did not assist himself by adhering, in cross-examination, to his assertion made in his written response to the Commissioner that, in relation to his obtaining and using of the steering lock that 'I felt at the time, and still believe, that I was reasonably entitled to protect myself'. It is submitted on behalf of the Commissioner that persistence in this answer indicates that the (respondent) is displaying an arrogant failure to accept that he was guilty of wrong doing and that he had a clear duty in the circumstances to avoid rather than escalate his participation in the combat developing on the footpath. This submission has undoubted weight. On the other hand, it is at least possible that the effect of over-ingestion of alcohol by the

(respondent) had seriously effected his appreciation of the significance of the production of the knife at the time and also his recollection of the incident. In the upshot, however, I could find little in the evidence of the (respondent) or in his demeanour in the giving of it that would have led me to alter the penalty imposed."

Two factors, and two factors alone, influenced the Tribunal to reduce the penalty imposed by the Commissioner. The first was the evidence of Sergeant A.F. Castle. The second was the view that the Tribunal took that to affirm the penalty of dismissal imposed on the respondent would disclose an unacceptable degree of disparity between that penalty and the penalty imposed on the other constable.
In his character reference dated 30 August 1990, Sergeant Castle said that he had had the respondent under his control for approximately 6 months. He said that, having been informed that the respondent "had faced some difficulty ... in relation to an incident involving alcohol", he had kept the respondent under close surveillance. He expressed the view that the respondent was a very competent police officer who carried out his duties efficiently and with enthusiasm and that he willingly undertook without complaint many of the less sought after duties and performed them well. He further said that he found the respondent to be courteous with the public. He said that he considered the disciplinary matters of which the respondent had been found guilty to be out of character. He added -

"I have seen him consume alcohol but I have never seen him behave in an unbecoming manner."

In the course of his oral evidence, which was given on 16 November 1990, Sergeant Castle said that he had got to know the respondent since the beginning of the year and that he was aware of a "rough outline" though not the full details of the events leading to the proceedings before the Tribunal. Asked to describe the working relationship within his own squad, Sergeant Castle said:

"I like to pride myself that I have a very good and efficient squad and also a squad that gets on well with one another and is quite closely knit as well as being an efficient unit, and I was worried about the influence that he might have on the squad, and I monitored to some extent and I found that, first of all, from a social point of view he fitted in well with the members of the squad, and secondly, from the point of view of his work performance, he was quite an adequate worker. As a matter of fact he went out of his way to put in a good work performance. I also found that he was not averse to doing jobs which some people found quite distasteful and boring. He never complained in any way in relation to it, so in point of view of his work performance, I could not fault him in any way."

He said the respondent had good rapport with the public and dealt with members of the public both efficiently and sensitively. Asked whether he had any reservation to make about the respondent in relation to his character, Sergeant Castle said:

"Whilst the constable is working in my squad, as a member of the police force, I never saw him affected by alcohol in any way. However, I did see him off-duty consume alcohol, and even when I saw him off-duty consuming alcohol, he did not, when I saw him, appear to be adversely affected by it. However, taking his overall character and the history of events which have taken place, it is my opinion that the constable suffers from an alcohol problem. I believe that he is possibly a person who should not consume alcohol."

He also gave the following evidence:

" Q. So generally, I take it, that as far as you are concerned, you are perfectly happy to indicate to his Honour that he is a person that appears to be ably able to carry out the duties of a police officer, at least a member of your general duties squad?

A. He is able to carry out his duties as a member of the police force when he is working. However, I have been a policeman for many years, and I believe that a policeman has a duty to maintain an image in his private life as well as that when he is actually carrying out his duties, and I believe that his private life, to some extent, may have spoilt his image as the professional police officer that he was when he was working.

Q. Do you, yourself, think that he needs to seek any assistance in relation to the alcohol problem that you have observed? A. I believe that it would be of assistance to him if he did seek professional help in that aspect."

That proceedings for a breach of the disciplinary code applying to members of the Australian Federal Police are essentially different in character and result from proceedings for an offence against the criminal law was made clear by a Full Court of this Court in Hardcastle v Commissioner of Police (1984) 53 ALR 593 at p 597. The character of the former class of proceedings appears from the following passage in the joint judgment of the members of the Court (ibid):

"The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish (see Harvey v Law Society of New South Wales (1975) 49 ALJR 362 per Barwick C.J. at 364; 7 ALR 227) or to exact retribution (see Ex parte Attorney-General

(Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 per Fox, Blackburn and Woodward JJ. at 244)."

In Mitchell v Commissioner of Police (Federal Police Disciplinary Tribunal - 7 November 1986 - unreported) Kelly J., sitting as the President of the Federal Police Disciplinary Tribunal, after referring to Hardcastle v Commissioner of Police (supra), said (p 11):

"The penalty to be imposed for the disciplinary offence must take account, therefore, of the need to protect the public, the maintenance of proper standards of conduct by members of the Australian Federal Police and the protection of that body's reputation... The maintenance of proper standards of conduct by members requires that the penalty imposed in respect of the disciplinary offence should act as a deterrent to members generally and to the appellant in particular. Very importantly, the penalty must show to the public that an appropriate standard of integrity is demanded of members. In that way the reputation of the Australian Federal Police can be protected."

The offences of which the respondent was found guilty were extremely serious, involving as they did unprovoked acts of physical violence, in concert with another constable, against four members of the public. The use of force by the respondent was inexcusable. His conduct generally on the occasion in question demonstrated a serious lack of self discipline and judgment. As the Tribunal found, he displayed an aggressive, violent and lawless attitude amounting to a very serious breach of the standard of conduct to be expected of a member of the Australian Federal Police. That a constable of police should display such an attitude, involving a lack of respect for the law and for the rights of others, is a cause for serious disquiet in the minds of the public. The respondent was, at the time, a constable of more than three years' standing. As such, he might have been expected to set a good example for the more junior officers to follow rather than being the instigator of the kind of confrontation that took place. The public are clearly entitled to expect that those entrusted with the duty of law enforcement will not behave in such a way. As Gibbs C.J. said in O'Rourke v Miller (1985) 156 CLR 342 at pp 353-4, though in a different context:

"It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the police force ..."

There must be added to all that the respondent has at no stage acknowledged the gravity of what he did. He has continued to endeavour to shift responsibility for the incident to others. He has persisted in the view, not accepted by the Tribunal, that he was justified in doing what he did on the ground of self defence. He has shown no remorse or contrition.
Even more importantly, the Tribunal was not prepared to believe him on oath. It also found that he had failed to give to his superior officers a full and frank account of what had occurred. The findings of the Tribunal in this respect provide an ample basis upon which his credit may be attacked in relation to any evidence he may be called upon to give in future proceedings. His effectiveness as a member of the police force has thus been diminished.
It is against this background that Sergeant Castle's evidence must be evaluated. Notwithstanding that Sergeant Castle was of the view that the respondent was a very competent police officer, he qualified his other commendatory remarks by confining them to the respondent's work performance. It is significant that he had reservations about the image the respondent maintained in his private life and clearly regarded him as having an alcohol problem. It is thus apparent that, notwithstanding the lapse of time since the events in question, the respondent has not sought medical or other assistance in overcoming that problem.
In my opinion, the Tribunal gave undue weight to the commendatory remarks made of the respondent by Sergeant Castle and failed to give sufficient weight to his comments concerning the respondent's alcohol problem.
The remaining matter concerns the penalty imposed by the Commissioner on the other constable. That penalty was to reduce his salary from that of a third year constable to that of a second year constable. There are, of course, substantial grounds upon which to differentiate by way of penalty as between the two offenders. The respondent was found by the Tribunal to be the leader and instigator in what took place both at Civic and at the Hyatt Hotel. In addition the Tribunal made an adverse finding as to the respondent's credit, a most significant matter particularly in relation to a member of the police force. No such finding was made in respect of the other constable.
Being of opinion that to impose on the respondent a penalty short of dismissal would be to impose a penalty that is, in all the circumstances, inadequate, the fact that the other constable was awarded a substantially less severe penalty provides, in my view, no sufficient ground to warrant a reduction in the penalty which should properly be attracted in respect of the disciplinary offences committed by the respondent. In so far as the Tribunal acted upon such a view, it fell, in my view, into error.
Considered overall, the respondent's conduct reflects badly not only on himself but on the reputation of the Australian Federal Police as a whole. The penalty imposed must show to the public that appropriate standards of behaviour are demanded of members of the police force. The evidence demonstrates to my mind that he is not a suitable person to remain as a member of that organisation. I would, therefore, set aside the decision of the Tribunal and, in lieu thereof, restore the penalty of dismissal imposed by the Commissioner.

JUDGE2

This statutory appeal, brought by the Commissioner of the Australian Federal Police under s.79(1A) of the Complaints (Australian Federal Police) Act 1981 ("the Act"), arises in the following circumstances.

The background

Early in the morning of 5 December 1988 the respondent, and another police officer, were involved in an altercation with four civilians in East Row, Canberra, and also on the ramp leading to the loading dock underneath the Hyatt Hotel, Canberra. The respondent, and the other officer, were then off duty. Complaints were lodged by the civilians and disciplinary proceedings were taken against the respondent and the other officer. In an inquiry under s.67 of the Act, Mr B.R. Maguire QC, a member of the Federal Police Disciplinary Tribunal ("the Tribunal"), found the respondent guilty of six of the charges brought against him, namely five disciplinary offences specified in reg.18(1)(d) of the Australian Federal Police (Discipline) Regulations (improper conduct - assault on members of the public) and one offence under reg.18(1)(e) (manner unbecoming - insulting and offensive words). Pursuant to s.67(3)(b) of the Act, Mr Maguire remitted the proceedings to the Commissioner for the imposition of a penalty. The Commissioner imposed the penalty of dismissal from the Australian Federal Police. The respondent appealed to the Tribunal, pursuant to s.68(1)(b) of the Act, seeking that the penalty be set aside and that a lesser penalty be substituted. The President of the Tribunal allowed the appeal and imposed, by way of a fresh penalty, a penalty that the respondent suffer a reduction in annual rate of salary from his current salary as a fifth year constable to a rate of salary appropriate for a second year constable.
The nature of the present appeal
The present appeal is brought in the original jurisdiction of the Court conferred by s.79 of the Act which, relevantly, provides as follows:

"79. (1) A person who was a party to a proceeding before the Disciplinary Tribunal may appeal to the Court, on a question of law, from a decision of the Tribunal in that proceeding.

(1A) Where, in pursuance of section 67, 68 or 69, the Disciplinary Tribunal imposes a penalty on a person in respect of a breach of discipline (other than a penalty of admonition or reprimand), the person or the Commissioner may appeal to the Court from the decision of the Tribunal on the ground that the penalty is unduly severe or is inadequate.

(1B) ...

(2) ...

(3) The Court has jurisdiction to hear and determine the appeal, and that jurisdiction shall be exercised by the Court constituted as a Full Court.

(4) The Court shall, in determining the appeal, make such order as it thinks appropriate.

(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Court on the appeal include an order affirming or setting aside the decision of the Disciplinary Tribunal and an order remitting the proceeding to be heard and determined again, either with or without the hearing of further evidence, by the Tribunal and in accordance with any directions of the Court. ..."

The present appeal is brought pursuant to s.79(1A). It will be noted that the appeal permitted by s.79(1) is on a question of law. By contrast, an appeal under s.79(1A) is not limited to a case where there is a question of law.
By s.81(1) of the Act, it is provided, relevantly, that where an appeal is instituted in the Court under s.79, the Tribunal shall cause to be sent to the Court all documents that were before the Tribunal in connection with the proceedings to which the appeal relates. As has been said, although this is a statutory appeal, the present matter arises in the Court's original, and not its appellate, jurisdiction. The hearing before us proceeded by reference to the material before the Tribunal, together with the reasons of its President, but without the tender of any evidence in this Court. The President is also a judge of this Court. The original jurisdiction of the Court was exercised, in this case, by a Full Court consisting of three judges.
The approach to be taken by the Court in the present kind of appeal was explained by Gibbs J. in Uranerz (Aust.) Pty. Ltd. v Hale (1980) 30 ALR 193 (at 197-8) as follows:

"It is of course well established that an appellate court which hears an appeal on documents and not on oral evidence will generally defer to the conclusion which the trial judge has formed upon the question which of the witnesses, whom he has seen and heard, are credible. The same principle applies where a court is hearing what is called an appeal but is in law an exercise of original jurisdiction...If a rehearing is conducted solely on written material, whether that material be technically evidence or a record, the appellate court should generally defer to the conclusion on a question of credibility formed by the tribunal from whom the appeal is brought and whose members saw and heard the witnesses."

See also Commonwealth of Australia v Pillifeant (1990) 93 ALR 641 at 654.
The reasoning of the President of the Tribunal
The President said that he bore in mind that the function of the Police Force was the maintenance of law and order and that, accordingly, the engaging in activity which was inimical to that object must be viewed very seriously. He also said that he had regard to questions of general and specific deterrents of the type of conduct in question, the protection of the public, and the need for the public to have confidence in the character of police officers. He was satisfied that the officer, himself, was entitled to have taken into account, his service history, any extenuating circumstances relating to the offence and his attitude to its commission. The President went on to say that it was appropriate to consider whether the continuance in service of an officer who had been found guilty of offences was likely to be detrimental to the proper administration of the Police Force, through its having any disruptive influence in the areas where the officer was employed or in having a deleterious effect upon the morale of his fellow officers: in this regard it was proper to take into account evidence of other police officers bearing on these matters. Such evidence must, the President said, be weighed very carefully against the opinion of the Commissioner, where a penalty of dismissal has been imposed, it being necessarily implicit in the imposition of that penalty, that the commission of the offence rendered the officer involved unfit to remain in the Police Force. The President added that where, as here, another police officer had been found guilty of breaches of regulations arising out of the same incidents, then it may be appropriate to have regard to the penalty imposed on that other officer, with a view to avoiding disparity in the imposition of penalties.
The President referred to evidence offered by the respondent (i) in an attempt to explain the circumstances of the incidents; (ii) as to his previous career in the Force; and (iii) with respect to his character. The President said:

"the clear effect of the Tribunal's findings was that the appellant was in a highly aggressive frame of mind at all stages, that he initiated the whole disgraceful series of events on the footpath, and that in continuation of his aggressive mode of behaviour, he pursued the other vehicle to its stopping place at the hotel and was party to further acts of aggression there. Not to put too fine a point on it, he was obviously drunk and spoiling for a fight."

The President went on to say that he considered that the Tribunal's findings provided "ample warrant" for the penalty of dismissal imposed by the Commissioner but that having regard to further material placed before him, he should take a different approach. The President described the respondent's evidence and said that he could find little in his evidence or in his demeanour in giving it that would have led the President to alter the penalty imposed.
The President then referred to two matters which, in his view, were significant. First, he described the testimony of a Sergeant of Police, City Patrol Branch, in which squad the respondent performed duty, as follows:

"...I was much impressed by the evidence of Sergeant A.F. Castle. The sergeant had provided a fairly cogent character reference on behalf of the (respondent) on 30 August 1990. He supplemented that character reference by bringing it up to date in sworn testimony. I am satisfied that the sergeant, upon the (respondent) being transferred to his station, and with the knowledge of the (respondent's) offences, kept particular surveillance of him. He gave a very balanced appraisal of the (respondent's) work and attitude as a police officer from the commencement of his duties at the sergeant's station. He was clearly in a position, and also took the opportunity, to observe closely the (respondent) both on and off duty. He found him to be a competent police officer, with a conscientious attitude to the performance of his duties and one who was courteous to the public. He also had good relations with his peers on and off duty. He conveyed the view that the (respondent) had learnt his lesson and should make a competent officer, of use to the Australian Federal Police.

He also expressed the view that the (respondent) had something of an alcohol problem in that he displayed an over-fondness for alcoholic drink. He expressed the view that this was something that the (respondent) needed to guard against to the extent, if necessary, of seeking medical advice. This is clearly something the (respondent) should bear in mind. There can be little doubt that it was serious over-indulgence in alcohol that led to the commission of the offences."

The second matter of significance referred to by the President was the apparent disparity of the penalty imposed upon the other constable. At the time of the offence, he had been a third year constable. He received a penalty of reduction in annual rate of salary to that of a second year constable. The President mentioned the Tribunal's finding that the respondent took the lead in the commission of the offences but described the other constable as "an enthusiastic participant". In his view, to impose a penalty of dismissal would be to create "an unacceptable degree of disparity". He said:

"I have come to the conclusion that I should impose a different penalty.

I take into account the facts as found that Constable Rosevear was the leader and main aggressor and was also the senior constable present. Obviously he must suffer a greater penalty than that imposed on the other constable. I consider that the interests of the public, the Australian Federal Police, and the constable will be sufficiently served if I impose upon him, effective from to-day, a reduction in his annual rate of salary from his current salary as a fifth year constable to the salary of a second year constable."

The Commissioner's grounds of appeal

On behalf of the Commissioner, it is submitted that if the Court would not have come to the same conclusion as the President, the Court should overrule his decision; that, while taking into account the views of the President, the Court must also take into account the views of the Commissioner; and that the penalty must take account of the need to protect the public, the maintenance of proper standards of conduct by members of the Force and the protection of that body's reputation. Then it is contended that, specifically, the President should have had regard to (i) the serious nature of the offences; (ii) the fact that the offences showed an attitude inconsistent with that expected of a member of the Force; (iii) the circumstance that the offences were likely to cause serious harm to the reputation of the Force; (iv) the respondent's attitude since the offences; (v) the Commissioner's serious view of the offences. For the Commissioner, it is also said that the oral testimony of Sergeant Castles was qualified, especially with respect to the difficulty with drink experienced by the respondent; and that the disparity in the penalty was explicable.
Result of the appeal
There is some force in these submissions but I have come to the conclusion that the appeal cannot succeed for the following reasons.
These are proceedings in the original jurisdiction of the Court. Although jurisdiction under s.79(1A) may be exercised where no question of law arises, the party who invokes the jurisdiction must make out a case for intervention by the Court by way of allowing the appeal and setting aside the decision of the President.
In my opinion, the Commissioner has failed to demonstrate that it is appropriate that the Court should now intervene. I have already set out at length the President's statement of the general principles which guided him. In my view, this full statement achieved a proper balance of the public and private interests involved here. Nor, in my opinion, can it be said that the President misapplied these principles in the circumstances of this case. It is true that the President placed considerable reliance upon the oral testimony of Sergeant Castle. But the President had the advantage of seeing the witness (see Jones v Hyde (1989) 85 ALR 23 at 27; Abalos v Australian Postal Commission (1988) 171 CLR 167 at 179). I am not persuaded that the President gave undue weight to the views expressed by Sergeant Castle. Nor, in my opinion, was it wrong for the President to take into account the apparent disparity in the penalty. Perceived unfairness in the treatment of police officers may not be beneficial to the morale of the Force as a whole. In short, I am not persuaded that the President made any error of principle in his approach to the question of penalty; nor, in my view, can it be said that the penalty he imposed was wrong for any legitimate reason.

JUDGE3

I have had the advantage of reading the reasons for judgment prepared by Beaumont J. I shall not again summarise the circumstances out of which this appeal arises.

The jurisdiction of this Court arises under s.79 of the Complaints (Australian Federal Police) Act 1981 ("the Act"), the relevant sub-sections of which read:

"79.(1) A person who was a party to a proceeding before the Disciplinary Tribunal may appeal to the Court, on a question of law, from a decision of the Tribunal in that proceeding.

(1A) Where, in pursuance of section 67, 68 or 69, the Disciplinary Tribunal imposes a penalty on a person in respect of a breach of discipline (other than a penalty of admonition or reprimand), the person or the Commissioner may appeal to the Court from the decision of the Tribunal on the ground that the penalty is unduly severe or is inadequate.

(1B) ...

(2) ...

(3) The Court has jurisdiction to hear and determine the appeal, and that jurisdiction shall be exercised by the Court constituted as a Full Court.

(4) The Court shall, in determining the appeal, make such order as it thinks appropriate.

(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Court on the appeal include an order affirming or setting aside the decision of the Disciplinary Tribunal and an order remitting the proceeding to be heard and determined again, either with or without the hearing of further evidence, by the Tribunal and in accordance with any directions of the Court.

..."

This is the first appeal which has arisen under sub.s.79(1A). It is necessary to consider the nature of the appeal which the sub-section creates. Although s.79 speaks of an appeal, resort to the court under sub.ss.79(1) or (1A) involves the original jurisdiction of the court: Hardcastle v Commissioner of Police (1984) 53 ALR 593.
Sub-section 79(1A) was inserted into the principal Act by the Complaints (Australian Federal Police) Amendment Act 1985 (No.122 of 1985). Prior to the amending Act, the only appeal created by s.79 was strictly limited to one on a question of law. Section 81 provides for the transmission to the court of "all documents that were before the Tribunal in connection with the proceedings to which the appeal ... relates", and contemplates an appeal argued on the papers. The nature of the appeal under sub.s.79(1) rendered it unlikely that the court had power to receive fresh evidence: Hardcastle v Commissioner of Police at 604. The appeal did not operate as an appeal by way of rehearing of the whole matter: cf Brown v Repatriation Commission (1985) 60 ALR 289 at 292. The appeal was not one on the merits of the decision.
The nature of the so-called appeal created by sub.s.79(1A) however is different. The sub-section provides an appeal from a penalty imposed by the Tribunal, and from a penalty affirmed by the Tribunal which the Commissioner imposed. The specified grounds of appeal contemplate a review on the merits of the decision. The appeal is not limited to a question of law.
The Tribunal, and the Commissioner in certain cases, is empowered to impose such penalty as the Tribunal or the Commissioner, as the case may be, deems fit, being a penalty within the range of penalties provided for by regulation 22 of the Australian Federal Police (Discipline) Regulations. In Hardcastle v Commissioner of Police at 597 the Full Court pointed out essential differences in character and result between disciplinary proceedings under the Act and a prosecution for an offence against a criminal law. The court observed:

"The object of disciplinary proceedings under the Discipline Regulations is to protect the public, to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body. The object of disciplinary proceedings is not to punish (see Harvey v Law Society of New South Wales (1975) 49 ALJR 362 per Barwick C.J. at 364; 7 ALR 227) or to exact retribution (see Ex parte Attorney-General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 per Fox, Blackburn and Woodward JJ at 244."

See also The Queen v The Minister of State for the Interior and Anor. (1972) 20 FLR 449 at 461-462.

Although there are differences in character between the two types of proceedings, the imposition of penalty in each case involves an exercise of discretion. In the case of an offence against the criminal law the penalty must be fixed having regard to the range of penalty provided by law, the seriousness of the offence and the circumstances of the offender. In the case of a breach of discipline under the Act the penalty must be fixed having regard to the range of penalty provided by regulation 22, the seriousness of the breach, and the object of the proceedings.
The appeal under sub.s.79(1A) is an appeal against an exercise of discretion.
The circumstances where a court exercising an appellant jurisdiction will interfere with the exercise of a discretionary judgment are clear. In the well known passage in House v The King (1936) 55 CLR 499 at 504-505 Dixon, Evatt and McTiernon JJ. said:

"But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

On an appeal under sub.s.79(1A) the court is not exercising an appellate jurisdiction, and the question arises whether the same principles nevertheless apply. This must turn on the true construction of the Act, and in particular sub.s.79(1A).
Counsel for the applicant contends that the principles which govern an appeal from an exercise of discretion by a primary judge do not apply under sub.s.79(1A). It is pointed out that one specified ground of appeal is that the penalty is "inadequate". The more usual form of words on a true appeal against sentence of "manifestly inadequate" is not used. Counsel referred the court to the words of Lord Denning in Qualcast (Wolverhampton) Ltd. v Haynes (1959) AC 743 at 762, cited with approval by the High Court in Warren v Coombes (1978-1979) 142 CLR 531 at 541:

"Since the case of Benmax v Austin Motor Co. Ltd. (1955) AC 370 the Court of Appeal no longer takes refuge in that most unsatisfactory formula: 'Although we should not have come to the same conclusion ourselves, we do not think we can interfere'. If the Court of Appeal would not have come to the same conclusion themselves, it does what the Court of Appeal ought to do - what it is there for - it overrules the decision. But short of that, it should accept the conclusions of fact of the tribunal of fact."

Counsel contends that the court should approach an appeal under sub.s.79(1A) in a similar way: if upon a consideration of the material before the court, the court would not have come to the same conclusion, it should substitute its own view.

The common statutory provisions in Australia which create rights of appeal against sentence in criminal matters are adopted from the United Kingdom Criminal Appeal Act 1907: see Whitehorn v The Queen (1983) 152 CLR 657 at 660, 685. Sub-section 4(3) of that Act provided:

"4.(3) On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal."

The authority of a court to quash the sentence passed at trial if it thinks that a different sentence should have been passed, and to substitute that which ought to have been passed is expressed in wide terms, yet, because the imposition of penalty involves an exercise of discretion, courts in England and Australia have formulated the limitations upon the functions of appeal courts which are expressed in House v The King at 505-506. See also Archbold, Criminal Pleading Evidence and Practice, 42nd Ed. paras.7-58, 7-63 to 7-66. In my opinion the same limitations should be applied in the exercise of the power of review given by sub.s.79(1A).

The passage from the judgment of Lord Denning in Qualcast (Wolverhampton) Ltd. v Haynes contains a statement of principle concerning the function of a court of appeal in an appeal on law and fact by way of rehearing when the question is whether the court should accept or overrule a finding of fact made by the trial judge. An appeal against an exercise of discretion raises different considerations and the functions of an appeal court are not the same.
An appeal under sub.s.79(1A), whilst not confined to questions of law, will normally be conducted on the papers: see s.81. In the present case the appeal was conducted in this way. Even though the hearing of the appeal involves an exercise of original jurisdiction "the appellate court should generally defer to the conclusion on a question of credibility formed by the Tribunal from which the appeal is brought and whose members saw and heard the witnesses"; Uranerz (Aust.) Pty Ltd v Hale (1980) 30 ALR 193 per Gibbs J. at 198.
Counsel for the applicant in his carefully prepared argument took the court in detail through the findings of fact made by Mr B.R. Maguire QC, the member of the Tribunal who conducted the inquiry under s.67 of the Act, to emphasise, firstly, the seriousness of the offences, secondly, that the offences showed an attitude inconsistent with that of a member of the Police Force, and thirdly, that the offences were likely to cause serious harm to the reputation of the Police Force. Fourthly, the court was directed to findings made by Mr Maguire, and to the conduct of the appeal before the Tribunal from the penalty imposed by the Commissioner, which it was contended showed that the respondent since the offences has shown neither comprehension of the seriousness of the offences, nor remorse, contrition or change of attitude. Fifthly, it was contended that the penalty of dismissal imposed by the Commissioner showed the serious view which the Commissioner took of the conduct proved against the respondent, a matter of importance to be taken into account when deciding penalty: Craven v The Commissioner of Police, Kelly J. sitting as the Federal Police Disciplinary Tribunal, 9 February 1987 (unreported) at p 11, and Rowlands v The Commissioner of Police, Kelly J. sitting as the Federal Police Disciplinary Tribunal, 9 December 1983 (unreported) at p 11.
Counsel for the applicant conceded that the question of disparity between the penalty imposed on the respondent and that imposed on the other officer found guilty of disciplinary offences was a relevant matter to be considered by the Tribunal, but argued that it was only one among many matters, and the five matters emphasised by counsel were said to be paramount. In my view the concession that disparity was a relevant matter for consideration was correctly made. Disparity between penalties imposed upon co-offenders which is disproportionate to the respective degrees of seriousness of the proved breaches of discipline is likely to affront the sense of fairness of other members of the Police Force. I agree with Beaumont J. that perceived unfairness in the treatment of police officers may be inimical to the morale of the Force as a whole.
Beaumont J. has undertaken a review of the reasons for decision of the President of the Tribunal. I agree with that review. The reasons for decision of the President disclose that each of the matters emphasised by counsel for the applicant was taken into account. In my opinion the applicant has not demonstrated any error of fact or law by the President in reaching his decision, nor am I persuaded that the decision was unreasonable such that this Court should infer that the exercise of discretion miscarried for some undisclosed reason. In my opinion the appeal should be dismissed with costs.

[1991] FCA 517

28 AUGUST 1991