Commissioner of Police v Scanes

[1983] AFPDT 7

JUDGMENT No. .. :L C.?... l .L?@d

No. 1 4 o f 1983

DISCIPLINARY TRIBUNAL 1

THE COMMI SSIONER OFQOLI CE

a g a i n s t

SERGEANT WARREN DAVID SCANES

IN THE MATTER of t h e Complaints

( A u s t r a l i a n F e d e r a l P d l i c e ) Act 1981

F I N D I N G S

THE PRESIDENT	(KELLY J )
9 DECEMBER 1983

CANBERRA, A . C . T .

THE TRIBUNAL FINDS THAT S e r g e a n t Warren David SCANES i s g u i l t y

o f t h e d i s c i p l i n a r y o f f e n c e a l l e g e d i n Charge No. AFP:8/8384,

namely: -

That he was c a r e l e s s i n t h e d i s c h a r g e o f h i s

d u t i e s c o n t r a r y t o t h e p r o v i s i o n s o f pa ragraph

1 8 ( l ) ( c ) o f t h e A u s t r a l i a n F e d e r a l P o l i c e

( D i s c i p l i n e ) R e g u l a t i o n s , i n t h a t on 16 J u l y 1982,

h a v i n g r e q u i r e d Wayne R u s s e l l McDOWALL t o produce

f o r i n s p e c t i o n h i s l i c e n c e t o d r i v e a motor v e h i c l e

and t h e s a i d Wayne R u s s e l l McDOWALL hav ing s o

produced h i s l i c e n c e t o him, he f a i l e d t o r e t u r n

t h e s a i d l i c e n c e t o him immedia te ly o r s h o r t l y

t h e r e a f t e r h i s having i n s p e c t e d i t .

IN THE FEDERAL POLICE 1

No. 14 of 1983

DISCIPLINARY TRIBUNAL 1

THE COMMISSIONER OF POLICE

against

SERGEANT WARREN DAVID SCANES

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

REASONS FOR DECISION	KELLY J
9 DECEMBER 1983

By notice dated 18 July 1983 the Commissioner of the Australian Federal Police instituted proceedings against Sergeant Warren David Scanes (Sergeant Scanes) charging that he was careless in the discharge of his duties contrary to the provisions of paragraph 18(l )(c) of the Australian Federal police (Discipline) Regulations in that on 16 July 1982, having required Wayne Russell McDowall to produce for inspection his licence to drive a motor vehicle and the said Wayne Russell McDowall having so produced his licence, he failed to return the said licence immediately or shortly after he had inspected it. (Australian Federal Police Charge No. A.F.P. 8/8384.)

Sergeant Scanes admits that on the morning of 16 July 1982 he required Mr. McDowall to produce his driver's licence for inspection and that subsequently he placed it in his pocket, forgetting, as he said, to return it to Mr. McDowall. It was not until about half an hour later that he realised he still had the licence. Sergeant Scanes agreed in cross-examination that unless he were going to keep the licence for the purpose of evidence in some matter he should have returned it forthwith.

~egulation 18 provides, inter alia, that a member

is guilty of a disciplinary offence and is subject to punishment in accordance with the Regulations if he is negligent or careless in the discharge of his duties.

Since Sergeant Scanes did not keep the licence in

purported discharge of a duty (although he well might have)

and since, as he admitted, he should have returned the licence after having had it produced for inspection, I am satisfied that he was, at the least, careless in the discharge of his duties.

Mr. McDowall gave evidence that on the morning of 16 July 1982 he went with Eric and Peter Andrews (the latter

being also known as Peter Miller) to a discotheque in

C! Canberra City. He parked his car outside the discotheque, illegally as I find. As he was leaving the discotheque he saw two police officers entering it. One of them asked him whose was the car and he acknowledged that it was his. He was then asked to produce his driver's licence. He produced it. The police officer to whom he produced it was Sergeant Scanes. He recounted the conversation between Sergeant Scanes and him in the following words:-

"First I was asked, why was I parked here, and I said, '1 could not find another - I could not find a parking spot anywhere else' and then I was asked for my driver's licence and that was an American one, because I had just been back in Australia for two weeks and I gave that to the officer and he said, 'Sorry, that's expired', put it in his pocket."

Asked to repeat what he had just said, he said, "Sorry, it's expired", He went on,

"and put it in his pocket and told me to piss off and I asked for it back. He said, 'NO, don't let me see you again'."

The officer had, he said, put the licence in the top pocket of his jacket.

He gave evidence that he then left the area and

went to the police Station where he made a statement. He

then left the police Station and went to Queanbeyan where he

picked up his brother, Lance. With his brother he returned to the Police Station. There they waited for the two officers concerned, Sergeant Scanes and Constable Thorn, to return.

He described the subsequent encounter between Sergeant Scanes and him in the following words,

"He walked in and I think I was asked, What1 S the problem' . I said, 'YOU

wouldn't give my licence back' and he said 'Well,. here it is1. I said 'Why didn't you give it back to me when I asked for it1. He said, 'What are you worried about, here it is now' and I got his name and badge number and told him I would see him in court."

After that he said that words to the effect of "1f you want to be silly1' or "Life could be made hard for you" were said.

He said that during the conversation an Inspector, Sergeant Scanes, his brother Lance and he were present.

The Inspector was, I am satisfied, Acting Inspector Richards who made reports and gave evidence before me.

Mr. McDowall was cross-examined as to a statement he made on 6 April 1983 and as to an interview he had had on the same date with Sergeant Rowley. A record was made of that interview. The written statement and the record of the interview became respectively Exhibits C and D.

Nowhere in Exhibits C and D is there any suggestion that such a threat as that of which Mr. McDowall gave evidence was made. Indeed, I consider it almost inconceivable that such a threat would have been made by a Sergeant in the presence of an Acting Inspector.

During the course of his cross-examination by Mr. ~iggins Mr. McDowall stated that he made two written statements on the morning of 16 July 1982. On all the evidence I am not prepared to find that he did. The statement which he did make, ~xhibit B, was in these terms:-

" ~ t approximately 3.45 am on Friday morning, I was illegally parked in front of Trix ~isco. I, and my 2 companions were walking to the car. There was a police car next to it, officers were out of the car looking to see who owned it I said it's my car. One office asked for my drivers liscence. I gave it to him (American drivers liscence) , he told me sorry it's expired & put it in his pocket, I ask for it back he said no & to get in the car & leave."

I am satisfied that that statement was made after Mr. McDowall had recovered his licence and when he was seen to be persisting with his complaint against Sergeant Scanes.

Lance McDowall gave evidence part of which was in

the following terms: -

".. . Sergeant Scanes came to the police

station and he arrived in the room where we were in, and he was asked if he still had Wayne's American driver's licence.

Sergeant Scanes walked in the room. There was a conversation between Sergeant Scanes and Inspector Richards. I asked Sergeant Scanes if he still had Wayne's driver's licence and he said, yes, he did. It was in his top left-hand pocket of his coat. And I asked him, when you pull somebody over to - when you pull somebody over and you ask for their driver's licence, do you have the right to keep it without returning it? He said, no, he did not. I asked him why he did not return it, and he said he forgot. And then my brother talked to him, Wayne, and Sergeant Scanes returned the licence to Wayne and Sergeant Scanes said, are you satisfied now? And Wayne said, yes, I am, and Wayne then said that he would be pressing charges of theft."

I t w i l l be s e e n t h a t Wayne McDowall's e v i d e n c e

concern ing t h e e n c o u n t e r between S e r g e a n t Scanes and him

when S e r g e a n t Scanes r e t u r n e d t o t h e P o l i c e S t a t i o n c a r r i e s

w i t h it t h e i m p l i c a t i o n t h a t S e r g e a n t Scanes admi t t ed t o

d e l i b e r a t e wrongful d e t e n t i o n o f t h e l i c e n c e . On t h e o t h e r

hand, Lance McDowall who was, I am s a t i s f i e d , concerned t h a t

h i s b r o t h e r s h o u l d p r e s s t h e c o m p l a i n t , gave concern ing what

I f i n d t o be t h e same i n c i d e n t ev idence which i n d i c a t e d a

much lesser d e g r e e of c u l p a b i l i t y , t h a t of mere

f o r g e t f u l n e s s .

The b r o t h e r s ' e v i d e n c e o f t h e encoun te r is t o be

compared w i t h t h e ev idence o f Ac t ing I n s p e c t o r ~ i c h a r d s

g i v e n p r i m a r i l y through h i s s t a t e m e n t made on 16 J u l y 1982.

P a r t o f t h a t s t a t e m e n t reads:-

"... McDowall r e t u r n e d w i t h h i s b r o t h e r

a t 5. loam. Ac t ing S e r g e a n t Scanes

handed McDowall h i s d r i v e r s l i c e n c e . Wayne McDowall asked why he had n o t been g i v e n t h e l i c e n c e back, o u t s i d e t h e

Disco, S e r g e a n t Scanes r e p l i e d , 'You

were t o l d to l e a v e by Cons tab le Thorn, which you d i d , a f t e r you had gone I d i s c o v e r e d t h a t I s t i l l had your

l i c e n c e , I do n o t have your a d d r e s s .

... I asked McDowall i f he was s a t i s f i e d

he r e p l i e d t h a t he was n o t and he wanted

t o l a y a cha rge o f s t e a l i n g h i s d r i v e r s

l i c e n c e a g a i n s t S e r g e a n t Scanes. I

e x p l a i n e d t o McDowall h i s r i g h t s under

t h e p r o v i s i o n s o f t h e P o l i c e Complaints

A c t and t h e p rocedure t h a t h a s t o be

adop ted . The s t a t e m e n t a t t a c h e d

[ E x h i b i t B] was t h e n w r i t t e n o u t by

M c D o w ~ ~ ~ . It

The ev idence is f u r t h e r t o be compared w i t h

S e r g e a n t Scanes ' v e r s i o n of t h e e v e n t s which a p p e a r s i n h i s

answer t o q u e s t i o n 62 p u t t o him and recorded by S e r g e a n t

Rowley. H e s a i d i n t h a t answer,

"We both [Inspector Richards and Sergeant Scanes] approached McDOWALL. I handed him his licence and when he wanted to know why I had kept it I explained to him that they had had a smart attitude towards the police, I had forgotten about his licence and I didn't have his current address. I then went on and challenged him about his remarks to the Inspector in relation to the outlandish comment that I was drunk. As I recall he couldn't explain it."

That answer was given on 26 May 1983 and is recorded in

Exhibit 0.

After comparison of all the evidence and taking into account the demeanour of the witnesses concerned, I am not satisfied that the version of events given by the complainant Mr. Wayne McDowall is correct. Had it been established to be correct the gravity of the charge against Sergeant Scanes would have been greater.

I should record, too, that I am not satisfied that there is any evidence to indicate that Sergeant Scanes was under the influence of intoxicating liquor to any degree on the morning in question. Mr. Wayne Mc~owall's answers on this aspect were unsatisfactory. It is clear that he was challenged by Sergeant Scanes concerning the allegation. Mr Lance M c D o w ~ ~ ~ , having initially alleged that Sergeant Scanes was showing signs of intoxication retracted that allegation entirely in cross-examination. The transcript of the cross-examination does not really indicate its effectiveness and how devastating the retraction was.

In all the circumstances I find Sergeant Scanes

guilty of the disciplinary offence charged. I am, however,

not satisfied that there are any matterb of a9gravation.

~lthough it was submitted to me that I should impose no penalty, I adhere to the view which I expressed in the case of Commissioner of Police v. Donaldson that once a disciplinary offence is found proven one of the prescribed penalties must be imposed. Before deciding on the appropriate penalty I will take the action prescribed by s.67(5) of the Complaints (Australian Federal Police) Act

7

I I

I certify that this and the 5;*

preceding pa es are a true copy of the B

Reasons for herein of his Honour

Mr. Justice Kely.	I
I
G

I Associate

1 Dated: ' q u b ~ #

IN THE FEDERAL POLICE	1
1 No. 14 of 1983
DISCIPLINARY TRIBUNAL	1

THE COMMISSIONER OF POLICE

against

SERGEANT WARREN DAVID SCANES

IN THE MATTER of the Complaints

(Australian Federal Police) Act 1981

O R D E R S

THE PRESIDENT (KELLY J)

23 DECEMBER 1983

CANBERRA. A.C.T.

THE TRIBUNAL ORDER THAT:-

L! 1. In respect of the disciplinary offence alleged in Charge No. AFP.8/8384, namely:-

That he was careless in the discharge of his duties contrary to the provisions of paragraph 18 ( l ) ( c) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, having required Wayne Russell McDOWALL to produce for inspection his licence to drive a motor vehicle and the said Wayne Russell McDOWALL having so produced his licence to him, he failed to return the said licence to him immediately or shortly thereafter his having inspected it.

of which he has been found guilty, Sergeant Warren David

Scanes be reprimanded.

I N THE FEDERAL POLICE	1 1
DISCIPLINARY TRIBUNAL	1

THE COMMISSIONER OF POLICE

against

SERGEANT WARREN DAVID SCANES

I N THE MATTER of t h e C o m p l a i n t s

( ~ u s t r a l i a n F e d e r a l P o l i c e ) A c t 1 9 8 1

REASONS FORPENALTY	KELLY J
23 DECEMBER 1 9 8 3

On 9 ~ecember 1983 I found Sergeant Warren David Scanes (Sergeant scanes) guilty of a disciplinary offence particularised in my formal findings. Put shortly, he was found guilty of being careless in the discharge of his duties in that he failed to return to Wayne McDowall the driver's licence which he had required him to produce. MY detailed reasons for the findings I made are set out in reasons published on 9 December 1983. I will not repeat them.

sergeant Scanes effectively admitted the charge. He contested only the circumstances. On that contest I found in his favour.

I took the steps required by s.67(3) of the Complaints (Australian Federal Police) Act 1981. It is not suggested that I should impose a penalty other than a

reprimand . In the case of Commissioner of Police v.

Donaldson in which I handed down reasons on 1 September 1982

I expressed the view that 1 am bound to impose some penalty

when a disciplinary offence has been found proved. I adhere

to that view.

In all the circumstances I consider the

appropriate penalty is a reprimand.

1

I oertify that this

C ;

a true copy o f the

.ra l

herein of b i s Honou-S i

I

I Mr. Justice l*. I

1 Associate

Dated: 2 3 d W * , /?M