Commissioner of Police v Sloane

IN THE FEDERAL POLICE	I
) No. 10 of 1984
DISCIPLINARY TRIBUNAL	)

COMMISSIONER OF POLICE

Against

PETD. GERALD SLOANE

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

DECISION

TRIBUNAL	:	Mr. Justice Jenkinson, Deputy President
n:	25 September, 1995

1. The Tribunal finds Constable Peter Gerald Sloane guilty of the disciplinary offence charged in the notice (A!FP:8/8485) dated 28 August 1984.

2. The Tribunal adjourns the further hearing of the

W	proceedings instituted by the service of the said notice to a date to be fixed.

IN THE FEDERAL POLICE	1
) No. 10 of 1984
DISCIPLINARY TRIBUNAL	)

COMMISSIONER OF POLICE

Against

PETER GERALD SLOANE

IN THE MATTER of the

Complaints (Australian

Federal Police) Act 1981

25 September, 1985

MR. JUSTICE JENKINSON -

Deputy President

REASONS FOR DECISION

1. Reasons in writing given by the Federal Police Disciplinary Tribunal for its decision, in a proceeding heard by it in pursuance of s.67 of the Complaints (Australian Federal Police) Act 1981, whether Constable Peter Gerald Sloane is guilty

of a charge that he acted in a manner unbecoming a member of the

Australian Federal Police.

2. The evidence satisfied the Tribunal of the occurrence of

the events, and of the circumstances, specified hereafter in this

paragraph.

Constable Sloane was born on 29 May 1962. At all material times he has been and is now a member of the Australian Federal Police of the rank of constable. On Saturday and Sunday 24 and 25 March 1984 he was not on duty. Between 4.35 and 4.55 in

the morning of Sunday 25 March 1984 he was unlawfully assaulted by several men in Garema Place, Civic. Shortly after that assault Constable Sloane approached a taxi near the Centre Cinema. David Clark Lovie was in the driver's seat. In the front passenger seat was a male passenger and in the rear of the taxi were three young women who were also passengers. Mr. Lovie was carrying the passengers for reward. Because Constable Sloane looked distressed Mr. Lovie asked him whether he was all right and whether Lovie should call him a taxi. Constable Sloane replied that he had been

attacked, enquired whether Lovie had seen a car drive off, and said that he was commandeering the taxi to take him to the police station and that he was an off-duty policeman. Constable Sloane walked to the front near-side door of the taxi and, at Mr. Lovie's suggestion, the male passenger moved from the front to the rear of the taxi. Constable Sloane then got into the front passenger seat. Constable Sloane slammed shut the front near-side door of the taxi violently, he struck the dashboard in front of him more than once with his fists, he swore a number of times, said the

U	words "fucking cunts" more than once and used other expletives. His demeanour was that of a man in a rage. His conduct frightened Lovie.
At Constable Sloane's request Mr. Lovie drove the taxi towards the police station, but when Lovie saw a police car in London Circuit he caused it to stop, whereupon Constable Sloane alighted from the taxi and joined the policemen who were in the police car.

The evidence on which the findings specified in

paragraph 2 hereof are based is, as to the circumstances occurring in and in the vicinity of the taxi, the evidence of Mr. Lovie, and

as to the other circumstances, the evidence of Constable Sloane.

4. Before proceeding further in consideration of the charge it is convenient to consider certain applications and submissions

which were made on behalf of Constable Sloane before the Tribunal

entered upon the hearing of the charge.

The notice by service of which these proceedings against Constable Sloane were instituted included the following passage:

"THE nature and particulars of the alleged

disciplinary offence are as follows:

That you the said Peter Gerald SLOANE, on 25 March 1984, at Civic in the Australian Capital Territory, through your actions, your manner and your use of lewd language, did frighten and cause alarm to the driver of Australian Capital Territory Taxi number 37, David Clark

LOVIE.

Elsewhere in the notice it appeared that the conduct particularised in that passage was alleged to have constituted the second of the two disciplinary offences which are specified in Regulation 18(l) (e) of the Australian Federal Police (Discipline)

Requlations.

Regulation 18(l) (e) provides:

"(1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member -

(e)	acts in a disorderly manner or in a

manner unbecoming a member of the

Australian Federal Police;"

For the purposes of enabling the Tribunal to hear certain applications which were made before evidence was adduced in support of the charge, the parties, namely the Commissioner and the member charged, placed before the Tribunal a statement of agreed facts and a number of documents. It was thereby made to appear that the events alleged in the notice by which the

L proceedings were instituted had been the subject of a communication to a member of the Australian Federal Police by a person who was not a member of that body, namely Mr. Lovie. The circumstances in which that communication was made and the terms of the communication were such, according to the submission of counsel for .the member charged, that the communication was a complaint to and in relation to which the Complaints (Australian Federal Police) Act 1981 applied, and to which 5.6 of that Act applied. It was common ground that none of the investigative and

U	other procedures which that Act ordains in respect of such a complaint had been followed. It was submitted that the charge preferred against Constable Sloane was not one which the Tribunal was authorised to hear or determine because the failure to follow those procedures had the result that the preferring of the charge was not authorised by law.
One submission on behalf of the Commissioner in answer to that argument may be conveniently considered first. It was submitted by Mr. McCovern of counsel for the Commissioner that the communications which Mr. Lovie had made did not fall within the

meanings which, upon the proper construction of the Complaints (Australian Federal Police) Act 1981, are to be accorded the verb

"complains" and the noun "complaint" respectively in that Act

Neither word is defined for the purposes of that Act,

ss.5 and 6 of which provide:

"5.(1) Subject to this section, where a person complains to a member, concerning action taken by that member, or by another member, this Act applies to and in relation to the complaint whether -

(a)	the complaint is made orally or in writing;
(b)	the member whose action is complained of is identified in the complaint; or
(c)	the identity of the complainant is known by, or disclosed to, the member to whom the complaint is made.

( 2 ) Subject to this section, where a person

complains to the Ombudsman concerning action taken by a member, this Act applies to and in relation to the complaint whether or not -

(a)	the member whose action is complained of is identified in the complaint; or
(b)	the identity of the complainant is known by, or disclosed to, the Ombudsman.

( 3 ) This Act does not apply to or in

relation to a complaint concerning action taken in relation to the employment of members generally or to the employment of a particular member.

( 4 ) The provisions of this Act, insofar as

they confer rights on a complainant with

respect to action taken by a member -

(a)	are in addition to the provisions of any other law;

(b)	except as provided in sub-section 22(5), do not affect the operation of any other law; and
(c)	without limiting the generality of the foregoing, do not prevent or affect the taking of legal proceedings in respect of that action under some other law or affect the operation of any other law in respect of legal proceedings so taken.

6.(1) Where a person complains to a member

concerning action taken by that member or by another member, whether before or after the commencement of this Act, the member to whom the complaint is made shall, in accordance with the General Orders or General Instructions -

(a)	refer the complaint, by the most expeditious means available to him, to the Investigation Division for investigation; or
(b)	refer the complainant to a member who, under the General Orders or General Instructions, is an appropriate member to receive the complaint.

( 2 ) Where a person complains to a member to

whom he has been referred under sub-section

(l), the member shall refer the complaint, by

the most expeditious means available to him, to the Investigation Division for investigation.

( 3 ) Where a complaint is referred to the

Investigation Division, the Ombudsman shall be notified of the complaint and furnished with particulars of the complaint.

( 4 ) This section does not apply to a

complaint made by a person who is known to the member to whom the complaint is made to be, or discloses to that member that he is, another member.

( 5 ) In this section, the expressions

'General Orders' and 'General Instructions' have the same respective meanings as they have in the Australian Federal Police Act 1979."

The word "member" is defined to mean a member of the Australian

Federal Police.

Section 4 provides:

"In this Act, unless the contrary intention appears, a reference to action that is taken by a member shall be construed as a reference to action that a member takes or purports to take -

(a) by virtue of his being a member; or

(b)	in the exercise of powers, or the performance of functions, conferred on him in his capacity as a member by this Act or by another law,

whether or not the taking of the action is within, or is incidental to the performance of, his duties."

It appeared from documents placed before the Tribunal

for the purposes of what may be called the preliminary submissions

- and the evidence of Mr. Lovie on the hearing of the charge

confirmed - that Mr. Lovie had gone to a police station in Canberra after he had taken his passengers to their destination, and had there reported to members of the Australian Federal Police his account of his recent encounter with Constable Sloane; that he had at no time desired that he should be regarded as making any formal charge against Constable Sloane, or as seeking any kind of redress in respect of what had occurred; and that he had sought to achieve no more than that Constable Sloane's superiors be made aware of what Sloane had done, which Lovie regarded as conduct unbecoming a policeman.

Mr. McGovern submitted that the words "complaint" and "complains" should be understood, in the Act, as involving an expression both of a sense of grievance and of an expectation of redress. He supported the submission as one giving to the words meanings appropriate to their context according to ordinary usage, and also by reference to provisions of the Act which contemplate reconciliation of a complainant and the policeman whose action has

been the subject of complaint: see ss. 19 and 42. Those provisions were said to contemplate a complainant whose concern was to express a grievance for which redress was sought, or at least desired. Mr. Lovie was not such a complainant, according to Mr. McGovern's submission, and what he had said had not fallen within the meaning of the word "complaint", in the Act.

The context in which the meaning of the two words is of

crucial importance, that is to say in ss. 5 and 6, seems to

the Tribunal to invite the attribution of a wide meaning. It

cannot be in accordance with ordinary usage to characterize a communication as a complaint concerning action taken unless the terms of the communication or the circumstances attending the communication justify an inference that the person making the communication disapproves of the action. But the connotation of a grievance to be redressed is not in the Tribunal's opinion suggested by the provisions of the Act, although some of those provisions may be thought to contemplate that some complainants will have a grievance. The Tribunal has reached the conclusion that any communication to a member of the Australian Federal Police which identifies "action that is taken by a member", in the

sense expounded by s.4, may constitute a "complaint", within the meaning of that word in 6.5 and s.6, if from the words of the person making the communication or from circumstances attending the making of the communication it is to be inferred that that person seriously disapproves of the action identified and intends that his disapproval be made known to that member, whether or not anything in the nature of a grievance or a hope of redress is to be detected in the mind of that person. In so far as the words "complains" and "complaint" connote the expression of grievance,

that connotation is in the Tribunal's opinion satisfied by the circumstances that it is to a member of the Australian Federal Police that the communication is made and that the serious disapproval of the person making the communication is intended to be made known to that member. That is a conclusion which the

Tribunal has reached without regret. If members of the Australian Federal Police were required by the Act to determine whether a sense of grievance or a desire for redress had been manifested by

a person who made to them a communication concerning action taken

by a member, or to determine whether a person making such a

communication desired that it be regarded as a "complaint", within the meaning of 5.5 or s.6, they would be saddled not infrequently with a difficult and invidious function. Even on the construction of the words "complains" and "complaint" which has been adopted by the Tribunal, members of the Australian Federal Police will be required sometimes to exercise a nice discriminatory judgment whether a complaint is being made to which 5.6 applies, as for example between the expression merely of an opinion that action taken by a member was not the most appropriate course which might have been taken and the expression of serious disapproval, or

between vehement disapprobative remarks spoken under the influence

of anger or distress which the speaker will certainly wish to withdraw in half an hour and a similar outburst which different circumstances require to be treated immediately as a complaint for the purposes of 5.6.

Parts I1 and 111 of the Complaints (Australian Federal

Police) Act 1981 make elaborate provision as to the consideration

'L	which must, and as to other consideration which may, be given to a complaint to which 5.6 of the Act applies. Investigative procedures are prescribed, compulsive inquisitional powers are conferred, consideration by the Ombudsman is required, and he may in various ways take part in consideration of the complaint.
Intricate prescription is made of the procedures to be followed. The observance of those procedures would, it was submitted on behalf of the member charged, have afforded him the chance of his being spared disciplinary proceedings in respect of the conduct
which was the subject of the complaint, and would have rendered
*i /*	inadmissible in evidence against him in most civil or criminal
proceedings, but not in proceedings such as this present proceeding, information he was by law required to give in the course of investigation of that conduct. The Complaints (Australian Federal Police) Act 1981 contemplates a charge of a
disciplinary offence as one possible result of the observance of
the procedures which the Act prescribes. The Act should, it was submitted, be understood as requiring that such a charge, in respect of conduct the subject of a complaint to and in relation to which the Act applies, and to which s.6 of the Act applies, be preceded by the observance of those procedures. Proceedings

instituted in respect of such a charge which had not been preceded

by the observance of those procedures were not validly instituted, the submission concluded, and could not be entertained by the Tribunal.

Mr. Sully Q . C . ,

who appeared with Mr. Purnell for

the

member charged, supported these submissions by a careful examination of the elaborately devised procedural scheme which is ordained in Parts I1 and I11 of the Complaints (Australian Federal

Police) Act 1981 for administrative review and, if need be, for remedying, of police action alleged by a member of the public to be inappropriate. That examination showed that consideration of a

complaint in accordance with the provisions of that scheme did afford the member of the Australian Federal Police whose conduct was the subject of complaint chances of intervention, by the Ombudsman or the Commissioner or the Attorney-General, which might have effects favourable to his interest, and which he did not enjoy if those provisions were not observed. Information furnished by a member of the Australian Federal Police under

compulsion, for the purposes of the investigation of a complaint to which 5.6 applies, is not admissible against him in any civil or criminal proceeding other than proceedings for an offence, created by s.7(8), of refusing or failing to furnish information or furnishing information knowing that it is false or misleading, or for or in relation to a breach of discipline : s.7(6). Mr. Sully submitted, and the Tribunal will assume without deciding, that the immunity from self-incrimination which s.7(6) of the Act confers is denied a member of the Australian Federal Police put to official question by another member about his actions outside the

procedures ordained by that Act. But the Tribunal cannot accept the conclusion to which Mr. Sully's submissions were addressed, that the Act imports a requirement that proceedings instituted in respect of a breach of discipline shall be preceded, if the breach charged is conduct the subject of a complaint to which s.6 of the Act applies, by observance of the requirements of Parts I1 and I11 of the Act .

There are two possible sources of authority for the hearing and determination of proceedings instituted by the Commissioner against a member under the prescribed regulations in respect of a breach of discipline : either the first or the second sub-section of s.67 of the Complaints (Australian Federal Policer

Act 1981. Those two sub-sections provide:

"(l) Where proceedings are instituted by the

Commissioner against a member under the prescribed regulations in respect of a breach of discipline -

(a)	as a result of an investigation of a complaint that was referred to the Commissioner by the Ombudsman; or
(b)	as a result of an investigation of a complaint that was referred to the Investigation Division under section 6, not being a complaint made by a person knobn to the Commissioner to be a member,

the proceedings shall be heard and determined

by the Disciplinary Tribunal.

( 2 ) Where proceedings (other than proceedings to which sub-section (1) applies) are instituted by the Commissioner against a member under the prescribed regulations in respect of a breach of discipline and the member concerned does not admit the truth of the matters alleged to constitute the breach of discipline, the proceedings shall be heard

and determined by the Disciplinary Tribunal -

(a)	if the member requests the Commissioner, in writing, that the proceedings be so heard and determined; or
(b)	if the Commissioner determines, in writing, that it would be desirable for the proceedings to be so heard and determined."

The "prescribed regulations" are the Australian Federal

Police (Discipline) Requlations. "Breach of discipline" is

L d

defined by s.3(1) of the Act to mean, unless the contrary intention appears, "an offence that is a disciplinary offence for

the purposes of the prescribed regulations". Declared by Regulation 2 ( 2 ) to be a disciplinary offence for those purposes is a disciplinary offence within the meaning of Regulation 18. Regulations 19 and 19A make provision for the institution of proceedings in respect of a breach of discipline. Regulation 19(1) provides:

"Where it appears to the Commissioner that a member may have committed a disciplinary offence, the Commissioner may, if he thinks fit, institute proceedings against the member in relation to the disciplinary offence by causing a notice to that effect to be served on the member."

Regulation 19A(1) provides:

"Where -

(a)	the Commissioner, in giving effect under sub-section 11(4) of the Complaints Act to a proposal put by him to the Ombudsman, charges a member with a disciplinary offence; or

b the Attorney-General directs, under sub-section 11(7) of the Complaints Act, that action should be taken by way of charging a member with a disciplinary offence ,

the Commissioner shall instutute proceedings against the member by causing a notice to that effect to be served on the member."

The expression "Complaints Act" is defined to mean the Complaints (Australian Federal Police) Act 1981. Sub-sections 11(4) and

L,	11(7) of the Act, to which Regulation 19A refers, provide for the charging of a member upon a consideration of a report of the results of one or other of the investigations, of a complaint to which s.6 applies, ordained by the Act. The Commissioner is required by s.ll(3) to consult with the Ombudsman, upon whom important functions in relation to such a complaint are conferred
by the Act, on the question whether a member or members of the
Australian Federal Police should be charged with an offence or breach of discipline. If they disagree, the question whether any and what action by way of charging any member should be taken is to be referred to the Attorney-General for his decision : s.11(5), (7). Where the processes ordained by 5.11 result in the charging
of a member with an offence or a breach of discipline, s.13 requires that the complainant be notified of that circumstance. These provisions may be thought to evince a legislative intention that a charge against a member of an offence, or of a breach of discipline, related to a complaint to which 5.6 of the Act applies
will be instituted only after consideration by the Commissioner and the Ombudsman of the report of the investigation of the complaint which the Act requires. On the other hand it is not to be supposed that in a case where a complaint to which s.6 applies

has been made, charges of serious offences against the criminal law which are the subject of the complaint should not be preferred until after the investigative and reporting procedures ordained by the Act have been carried out. Yet s.11 speaks indifferently of offences against the criminal law and breaches of discipline : see s.ll(3) (b).

It will be observed that the authority to hear and

determine proceedings which s.67(1) of the Act confers is

conditioned upon the proceedings having been instituted as a result of the occurrence of specified events after the making of a complaint, not upon any other relationship between complaint and proceedings or between complaint and breach of discipline charged. In respect of paragraph (b) of s.67(1) a legislative intention may be suspected that any charge of a breach of discipline the subject of a complaint to which s.6 has been thought to apply and which is not known by the Commissioner to have been made by a member of the Australian Federal Police should be submitted to hearing and determination by the Tribunal. But the legislature has not chosen to give precise expression to that intention. It has allowed within s.67(l)(b) a charge of a breach of discipline which has no relation to the complaint except that the proceedings in respect of the breach are instituted as a result of an investigation of a particular kind into the complaint. Such an investigation might disclose a breach of discipline which had a very tenuous relation to the subject matter of the complaint.

The advantages which observance of the intricate

procedures laid down by Parts I1 and I11 of the Act may be thought

to afford a member of the Australian Federal Police whose conduct has been the subject of a complaint to which 5.6 applies are in the Tribunal's opinion a consequence of the intention of the legislature, not to protect the interests of the member, but to ensure that such complaints are given a consideration so thorough and even-handed that public confidence in the investigation of the complaints will be assured. The Tribunal cannot discern in the provisions of the Act an intention that proceedings instituted in

U pursuance of Regulation 19 of the Australian Federal Police

(Disciplinary) Resulations in relation to a disciplinary offence

should be vitiated by reason of the circumstances that the conduct the subject of the charge was conduct the subject of a complaint to which 5.6 of the Act applied and that none of the requirements of the Act in respect of the complaint were observed. There is no express prohibition of such proceedings instituted in those circumstances. The Tribunal does not consider that any prohibition is to be implied.

5. As an alternative submission Mr. Sully argued that General Order 6 of the General Orders issued by the Commissioner in exercise of powers conferred on him by s.13 and s.l4(a) of the Australian Federal Police Act 1979 was not authorised by law, that the Commissioner's delegate's exercise of the power, conferred on him by Regulation 19(1) of the Australian Federal Police (Discipline) Requlations, to institute these proceedings against Constable Sloane depended for its validity on the validity of the precedent actions by members of the Australian Federal Police whereby it had been made to appear to the Commissioner's delegate that Constable Sloane may have committed the disciplinary offence

charged, that those actions had been taken in purported performance of powers conferred and duties imposed by General Order 6, and that in consequence of the invalidity of Order 6 and the invalidity of the actions taken in compliance with its provisions no effective exercise of the power conferred by Regulation 19(1) had occurred.

General Order 6 deals with an allegation or complaint,

concerning the behaviour of a member of the Australian Federal

'-4

Police, which is not a complaint to which the Complaints (Australian Federal Police) Act 1981 applies. General Order 6

contains detailed prescription of the procedures to be followed in reporting and investigating such allegations and complaints. It contains provisions which confer various powers and impose various duties on designated members of the Australian Federal Police in

relation to such investigations, and it includes a number of provisions concerning the procedures in accordance with which a decision is reached whether a member is to be charged with the

commission of a criminal offence or of a disciplinary offence disclosed by an investigation conducted in compliance with its requirements.

Section 13(1) of the Australian Federal Police Act

1979

provides :

"Subject to this Act, the Commissioner has the general administration of, and the control of the operations of, the Australian Federal

Police.

Section 14 provides:

"In the exercise of his powers under section

13, the Commissioner may issue -

(a)	orders (to be known as General Orders) with respect t o the general administration of the Australian Federal Police and determining the respective functions of the components referred to in sub-sections 7(1) and ( 2 ) ; and
(b)	instructions (to be known as General Instructions) for the effective and efficient conduct of the operations of the Australian Federal Police,

and may, at any time, amend or revoke any General Orders or General Instructions so

made.

Section 70 of the Act provides:

"The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed, for securing the discipline and good government of the Australian Federal Police, or for otherwise carrying out or giving effect to this Act, and, in particular, making provision for and in relation to -

(a)

the return to the Commissioner by a person who has ceased to be a member of property (including accoutrements and clothing) supplied to him for the purposes of his service as a member or in his custody by virtue of that service, and the recovery by the Commissioner of any such property not so returned, including the issue of search warrants by Magistrates for purposes of such recovery and the execution of such warrants; and

(b)

penalties, not exceeding a fine of $500, for offences against the regulations other than disciplinary offences."

Section 70 is in Part V1 of the Act, the heading of which is "Miscellaneous". In Part V, the heading of which is "Terms And Conditions Of Service", is contained another source of power to make regulations : 5.40, Paragraph (f) of that section provides:

"Regulations may make provision for and in

relation to -

(f)

disciplinary offences and penalties for

such offences (including.

dismissal)."

It was the submission of Mr. Sully that ss. 40(f) and 70 required that the powers conferred by ss. 13(1) and 14 be construed as not extending to authorise orders or instructions by the Commissioner with respect to the administration of the investigatory and deliberative activities of members of the

Australian Federal Police which shall precede a decision whether or not proceedings for a disciplinary offence are to be instituted. Sections 40(f) and 70 evinced a legislative intention to reserve that subject as one for the exclusive operation of regulations made in exercise of the powers conferred by those provisions, it was submitted. The intrusion upon that subject which the Commissioner had attempted by issuing General Order 6 was asserted to be beyond the power reposed in the Commissioner.

The Tribunal cannot accept the submission. It is unnecessary to consider whether each particular provision of General Order 6 is an exercise of the powers conferred by ss.

13(1) and 14, for the arguments of counsel for Constable Sloane

rested upon the contention that the whole subject to which those

provisions are addressed was excluded from the exercise of those powers. The Tribunal's conclusion is that orders of the kind contained in General Order 6 answer the description expressed in s.l4(a), that neither s.4O(f) nor 5.70 has the effect of denying the Commissioner power to regulate by the issue of general orders the administration of disciplinary procedures or procedures for the investigation of circumstances likely to be associated with the commission of disciplinary offences, and that only if the Commissioner were to issue general orders inconsistent with

regulations made under ss. 40(f) and 70 might those sections have an operation restricting the exercise of his power. It was not suggested that any such inconsistency existed.

6. It will be recalled that the grant of power which Regulation 19 of the Australian Federal Police (Discipline) Requlations confers on the Commissioner to institute proceedings against a member in relation to a disciplinary offence is expressed to be subject to this condition : "Where it appears to the Commissioner that a member may have committed a disciplinary offence". Mr. Sully submitted that, if (contrary to his submission) General Order 6 were not ultra vires, there had been failures of compliance with a number of the requirements of that General Order. It was not contended, as the Tribunal understood the submission, that by reason of those failures, or for any other reason, the documentary material upon a consideration of which the Commissioner's delegate had decided to institute these proceedings could not have satisfied a reasonable mind that the disciplinary breach charged may have been committed by Constable Sloane. Nor

was it contended, in support of the submission under present

consideration, that matter prejudicial to Constable Sloane's interest (as, for example, admissions by him) had been included in that documentary material in consequence of failure to observe the requirements of General Order 6. The submission was rather that the formation by the Commissioner's delegate of the opinion required by Regulation 19 - that it had appeared to him that Constable Sloane may have committed the disciplinary offence to be charged - had been vitiated merely by the circumstance that in the course of the investigative and deliberative processes which

culminated in the formation of that opinion there had been failures in observance of several of the requirements of General Order 6. That opinion not having been formed in accordance with those requirements, the charge against Constable Sloane was said to be "bad in law", and the Tribunal was asked to "quash" it. If it be assumed, but without expressing any opinion, that the

authority of the Tribunal to hear and determine these proceedings is conditioned upon their having been instituted in compliance

with the requirements of Regulation 19, and that one of those requirements is that it had in fact appeared to the Commissioner's delegate that Constable Sloane may have committed the disciplinary offence charged, there is in the Tribunal's opinion not any further requirement that that circumstance should have appeared

without failure in observance of requirements such as General Order 6 contains. There is nothing in any statute or regulation to which the Tribunal's attention has been directed that implies any such a requirement.

7. When statements made by Constable Sloane to another member of the Australian Federal Police were tendered in evidence

during the hearing of the charge, as admissions, objection was taken to reception of the statements. Conceding that the provisions of s.76(3) of the Complaints (Australian Federal Police) Act 1981 free the Tribunal of the rules of evidence, Mr. Sully submitted that the Tribunal ought nevertheless to exercise a discretionary power to exclude a confesional statement if it would be excluded in curial proceedings by way of a prosecution for crime. In this case what has been judicially described as the rule in Bunninq v. Cross (1978) 141 C.L.R. 54 was invoked by Mr.

Sully. The statements by Constable Sloane to the admission of which objection was taken were made on two occasions. On the first occasion Constable Sloane wrote and signed a statement in response to the contents of a document signed by Peter Jude Curtis, a Chief Inspector of the Australian Federal Police. That document was in these terms:

"AUSTRALIAN FEDERAL POLICE

INTERNAL INVESTIGATION DIVISION

GENERAL ORDERS AND GENERAL INSTRUCTIONS -

GENERAL ORDER 6

PARAGRAPH 20 SUB-PARAGRAPH (3)

(b) AND

( 3 ) (cl

CONDUCT, MISCONDUCT AND BEHAVIOUR OF MEMBEP.S -

ALLEGATIONS BY POLICE OR THE PUBLIC

TO: CONSTABLE P. SLOANE NO. 3061

AN ALLEGATION, in accordance with General Order 6 of the Australian Federal Police General Orders and General Instructions has been made by:

1. Acting Sergeant L.R. SUMMERFIELD

2. Constable S.D. AUSTIN

of the Australian Federal Police and Mr D.C. LOVIE, Taxi Driver, of 21 Truscott Street, Campbell, ACT alleging:

1.1 That about 0435 hours on Sunday 25th

March, 1984, you were spoken to by Acting Sergeant SUMMERFIELD and Constable AUSTIN at the Civic Bus Interchange and that you were under the influence of intoxicating liquor;

1.2 That you said to Constable AUSTIN 'How about I give you boys something to do, how about I go and kick a few windows in, how about that bank window, they're always good';

1.3

That Constable AUSTIN advised you to go home to which you replied, 'I'm going now, I might go look for a blue before I

go home

' ;

1.4

That between 4.30am and 5am on the same date you approached the driver of Taxi Cab registered number TX-37, Mr LOVIE's, near the Centre Cinema. There was one male and three female passengers in the cab at the time. The driver alleged that in the ensuing five minutes you

a.	claimed to have been bashed by a group of men;
b.	demanded to be taken to the Police Station stating that you were an off-duty cop and was taking over

the

taxi ;

c.	yelled profanities including words such as 'fucking cunts' in the presence of the passengers;
d.	when getting in the taxi slammed the door and punched the dashboard several times with considerable force;
e.	at no time showed any identification;

f . frightened and alarmed the

passengers;

g.	conducted yourself in an extremely arrogant and offensive manner.

1.5 That about 4.55am on the same date Sergeant SUMMERFIELD and Constable AUSTIN again had a conversation with you in the Civic Bus Interchange during which you alleged you had been assaulted by 'three wog fellows and a girl' travelling in a brown Holden Statesman

DeVille registered number Y00-848;

1.6 That Sergeant SUMMERFIELD offered to drive you to the hospital but you refused his offer and stated that you would get a taxi home;

1.7 That you were observed a short time later in front of Manhattan Discoteque yelling and waving your arms at the doorman;

1.8 That about 5 to 10 minutes later a person answering your description caused a disturbance at Bazza's Burger Bar at the Mobile Times Service Station;

1.9 That a short time later a person answering your description caused a disturbance at the Mandalay Chicken Van in Braddon;

1.10 That you were located a short time later by Police talking to the occupants of a small sedan in Mort Street and you were in an agitated state and shouting;

1.11 That you were conveyed to the City Police Station and a short time later driven home by Police.

and I believe that you can provide information and other records relevant to the investigation into this allegation. I hereby direct you to forthwith provide, in writing, such information as you have on the matter and produce such documents as are required and further to answer any questions that may be put to you as a result of the information you provide.

A member shall not, without reasonable excuse,

fail to comply with a direction given to him

under Paragraph 20(3).

NAME: P.J. Curtis

RANK: Chief Inspector

Served on the member

named herein at

(time) 9.40 am this

6th day of July 1984.

A member authorised

investigating officer

pursuant to Section 19 or 19A of General

Order 6.

Section 20 of General Order 6 provides:

"(l) Subject to this General Order, the

investigation of an allegation to which this General Order applies shall be conducted by an investigating officer and in such manner as the officer in charge of the Internal Investigation Division thinks fit.

( 2 ) An investigating officer may, for the

purposes of an investigation -

(a)	obtain such information from any person and make such inquiries as he thinks fit; and
(h)	enter, at any time, premises occupied or used by the Australian Federal Police.

(3) An investigating officer may, for the

purposes of conducting an investigation -

(a)	inspect any document that is relevant to the investigation and for that purpose may seize any such document ;
(b)	direct a member to furnish information, produce a document or answer a question, being information, a document or a question that is relevant to the investigation; and
(c)	direct a member to furnish to the investigating officer a written report relating to the circumstances that the member believes gave rise to the allegation.

( 4 ) A member shall not, without reasonable

excuse, fail to comply with a direction given

to him under sub-section ( 3 ) .

(5) An investigating officer may, for the

purposes of an investigation, take extracts from, or a copy of, a document or report produced in compliance with a direction given

to a member in pursuance of paragraph (3)(b) or (3)(c) or may cause such extracts or such a copy to be taken.

( 6 ) This section shall not be taken to

authorize a member to contravene or fail to comply with a law (including the common law) that applies in relation to the investigation of an allegation or the performance of his duty.

(7) This section has effect notwithstanding

section 39."

Mr. Sully submitted that the claim to exercise the common law privilege against responding to the requirements of Chief Inspector Curtis's document by a statement tending to expose to the penalties for a disciplinary offence was not "reasonable excuse", within s.ZO(4). The Tribunal will assume, without expressing any concluded opinion, that the privilege has been impliedly excluded by the Australian Federal Police Act 1979 and the Australian Federal Police (Discipline) Requlations. That statutory scheme appears to be similar to the Victorian legislation under consideration in The Police Service Board V.

L Morriss (1985) 57 A.L.J.R. 259. Regulation 95A(7) of the Victorian Police Requlations (as in force at the relevant time) is not easily distinguishable from Regulation 5 of the Australian Federal Police (Discipline) Requlations, which provides:

"A member shall not -

(a) disobey; or

(b) fail to carry out,

a lawful instruction or order, whether written or oral, given to him by the Commissioner, a Deputy Commissioner, a commissioned officer or the member under whose control, direction or supervision he performs his duties."

Regulation 5 is within Division 1 of Part I1 of those Regulations,

Regulations 18(l)(a) and 18(l)(b) of which provide:

"A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member -

(a)	contravenes or fails to comply with a provision of Division 1;
(b)	contravenes or fails to comply with a General Order or a General Instruction issued under section 14 of the Act."

Section 88(1) of the Victorian Police Resulation Act 1958 is in similar terms. Morriss's Case was concerned with questioning as to what had occurred when the policeman questioned was performing his duties as a police constable. Constable Sloane was not on duty when the events occurred about which he was interrogated, but in his dealings with Mr. Lovie he had assumed the role of a policeman.

The purported exercise by Chief Inspector Curtis of the powers conferred by s.ZO(3) of General Order 6 lacked the authority of that provision, according to Mr. Sully's submission, and for several reasons. First, because Constable Sloane's dealings with Mr. Lovie were the subject of a complaint to which s.6 of the Complaints (Australian Federal Police) Act 1981 applied, General Order 6 did not have any application to those dealings, it was submitted. Alternatively it was submitted that Chief Inspector Curtis did not, in relation to the allegation with respect to which he purported to give the directions contained in

the document he served on Constable Sloane, answer the description "investigating officer" in 5.20 of General Order 6, because his appointment as such had not been effected in accordance with the requirements of that Order, and that therefore those directions lacked the authority of s.20(3) which was attributed to them. Section 19A of General Order 6 makes provision for the appointment of an investigating officer. The appointment of Chief Inspector Curtis as investigating officer had been made in purported exercise of power conferred by s.19A. But the grant of the power

ici

is expressed to be conditioned upon receipt by the person

exercising the power of a report of one or-other of several descriptions. The report received did not answer any of those

descriptions, it was submitted. There were other submissions in support of the contention that in the events which had preceded service of the document on Constable Sloane nothing had occurred to enliven the powers specified in s.20(3). It is unnecessary to

set out those submissions.	Let it be assumed, but without
expressing an opinion -

(a) that the Tribunal has and ought to exercise, in hearing a charge such as this, a power to exclude relevant evidence in accordance with the principles expounded in Bunninq v. Cross (1978) 141 C.L.R. 54 and other later cases;

(b) that to require Constable Sloane to furnish information relevant to the subject of Mr. Lovie's complaint otherwise than in the course of carrying out the requirements of the Complaints (~ustralian Federal Police) Act

1981 in respect of that complaint was to make

a requirement for which the law provided no authority to a member of the Australian Federal Police; and

(C) that, even if no complaint to which s.6 of that Act applies had been made, the requirement which Chief Inspector Curtis made

of Constable Sloane lacked the authority of

s.20(3) of General Order 6.

There was no evidence - and I did not understand Mr. Sully to suggest - that any member of the Australian Federal Police involved in police consideration of Constable Sloane's conduct on

25 March 1983 engaged in deliberate disregard of the law. The

Tribunal is in no position to think that a statement by Constable Sloane concerning his conduct in the presence of Mr. Lovie that

L	day might have been easily procured in accordance with law. Not only has the Tribunal been forced to acknowledge difficulty in ascertaining the proper construction of ss. 5 and 6 of the Complaints (Australian Federal Police) Act 1981; it has also experienced much greater difficulty in attempting to construe General Order 6. No unfairness to Constable Sloane has been occasioned by any failure to follow the course of investigation prescribed by law : whichever course were followed, he was according to the submissions of his counsel obliged to answer when put to question, and his answers were admissible in evidence
L'
against him in proceedings for a breach of discipline. There was no real prospect of any other proceeding, civil or criminal. Against reception of the evidence of Constable Sloane's statements may be weighed the circumstance that it is of relatively slight cogency in proof of the charge. So, too, can be weighed against reception of the evidence the circumstance that the charge is not of very substantial gravity, and the consideration that the Complaints (Australian Federal Police) Act 1981 manifests a legislative intention that the procuring of information relevant to a complaint to which s.6 of the Act applies from a member of

the Australian Federal Police, particularly a member whose conduct is a subject of the complaint, should be in accordance with the detailed provisions of Part I1 of that Act. But the Tribunal decided that the balance of considerations for and against reception of the evidence was in favour of its admission.

On the second of the two occasions on which Constable Sloane made statements to the admission of which in evidence objection was taken he was making oral answer to questions put to

him orally by Chief Inspector Curtis. The same submissions were advanced in support of the objection as had been advanced in support of the objection to reception of the written statement, and the Tribunal admitted evidence of the questions and answers for the same reasons as have been stated for the decision to receive the written statement.

8. In the opinion of the Tribunal there are, at least, the following constituent elements of the disciplinary offence

ii charged

(a)	one or more physical acts of the member charged,
(b)	each of which is a conscious and voluntary act, and

(By the expression "physical acts" it is intended to comprehend conscious and voluntary inactivity : a member who remained hidden and immobile while an unlawful assault was being committed in his

view might very well be found to have committed the disciplinary

offence of acting in a manner unbecoming a member.)

The question arises in this case as to whether there is a further mental element which is a constituent of the disciplinary offence charged. That is because there was credible evidence that Constable Sloane was at the time of his encounter with Mr. Lovie under the influence of alcohol, which he had voluntarily ingested, and credible evidence that his mental

4.4	functions at that time may have been impaired by blows to the head, which he had involuntarily suffered when assaulted in Garema Place.
It was Mr. Sully's submission that it was an element of the disciplinary offence charged that the member charged be mentally capable at the time the acts are done of making what Mr. Sully described as "a discriminating judgment" whether the acts would be regarded by reasonable persons as unbecoming a member of
V	the Australian Federal Police. That submission could in my opinion be accepted only if it were an element of the disciplinary offence that the person charged appreciated at the time when the acts were done that they were acts which would be regarded by reasonable persons as unbecoming a member of the Australian Federal Police. If that were an element of the offence, then a lack of persuasion that the member charged was mentally capable of making that appreciation would lead to a lack of persuasion that he had in fact made the appreciation.

Mr. Sully did not deny that one of the elements of the

disciplinary offence was that the acts done should be in the

judgment of the adjudicating tribunal (whether the Commissioner or

this Tribunal) acting "in a manner unbecoming a member of the Australian Federal Police". Speaking of a charge of behaving in an indecent manner in a public place, Bray C.J. observed, in Prowse v. Bartlett (1972) 3 S.A.S.R. 472 at 480:

"It is clear that if words or conduct offend in their context the contemporary standard of decency, then, provided they are consciously and voluntarily uttered or performed, it is no defence that the speaker or doer of them had a good motive, or that he did not think they were indecent or intend to speak or act indecently or to offend anyone."

So, too, in respect of this disciplinary charge : in the Tribunal's opinion neither the perception by the person charged of what any other person might think as to whether he was acting in a manner unbecoming a member of the Australian Federal Police nor his own belief as to whether he was acting in that manner is a

constituent element of the disciplinary offence. If that be so, the mental capacity of the person charged to form such a perception or belief cannot be a constituent element either.

The mental state of the person charged may, however, have an influence on the judgment which the Tribunal is to make as to whether the acts done should be found to be acting in a manner unbecoming a member of the Australian Federal Police. And that will be so, in the Tribunal's opinion, whether that judgment is formed by reference to what the Tribunal considers reasonable members of the community would regard as unbecoming conduct or by

reference merely to its own opinion of what is unbecoming. No one, the Tribunal supposes, would characterize as conduct unbecoming a member of the Australian Federal Police the drunken behaviour of a uniformed policeman in a public place if he had

become grossly intoxicated, without any fault on his part, by drinking a beverage into which an intoxicating substance had been

introduced without his knowledge. The contradictories, becoming

and unbecoming, express a judgment as to the appropriateness of that to which they are applied by way of description. The

expression, "acts in a manner unbecoming a member of the Australian Federal Police", may perhaps be thought to direct the mind to a standard of appropriate conduct established without regard to personal idiosyncrasy, whether transient or of settled temperament. But the Tribunal is of the opinion that, upon its proper construction, the expression imports a judgment in which consideration is required not only of external circumstances and the behavioural response to those circumstances which would be expected of the normal policeman in a normal physical and mental

condition, but also of any physical or mental abnormality of the person charged and of his moral responsibility for the existence of such an abnormality.

9. The evidence satisfied the Tribunal of the occurrence of

the events, and of the circumstances, specified hereafter in this

paragraph.

Constable Sloane consumed no alcoholic liquor on

Saturday 24 March 1983 until after 7 p.m.. Between that time and

about 4.30 a.m. on Sunday 25 March 1983 he voluntarily consumed

alcoholic beverages in such quantity as to produce the result that he was intoxicated before and during and after his encounter with Mr. Lovie. The impairment of his control of his movements shortly before he was assaulted was obvious to policemen who observed him

standing and walking and his speech was slurred. The Tribunal is not persuaded - although there was some evidence - that his mood before the assault was aggressive or that his cognitive faculties

were grossly impaired.

During the fight in Garema Place between Constable Sloane and the men who unlawfully assaulted him there he received several heavy blows to the head, one of which caused fractures of the nasal bones with some depression of each bone. One or more of the blows caused concussion to his brain. The combined effect of alcoholic intoxication, concussion and the conventional psychological responses of a strong, vigorous young male Australian to a painful beating in a fight with other males was an emotional state accurately described by Mr. Lovie : Constable

L	Sloane was, while in Lovie's presence, "in a rage". During that period Constable Sloane's cognitive faculties and his judgment were impaired.
10. The evidence on which the findings specified in paragraph 9 hereof are based is, as to the consumption of alcohol, Constable Sloane's evidence that he voluntarily consumed alcoholic beverages after 7 p.m. on 24 March 1985 and the evidence of the
witnesses specified hereafter of his behaviour after 4.30 a.m. on 25 March 1985; as to the effect of the alcohol consumed, the evidence of L.R. Summerfield, George Thaung, D.C. Lovie, S.D.

Austin, T.J. Barry and D.J. Craigie; as to the blows to the head and the effects thereof, the evidence of Constable Sloane, D.J. Craigie, L.M. Sloane and B.M. Sloane.

11. The Tribunal is not persuaded that any moral culpability, of significance for deciding whether the charge is proved, attended Constable Sloane's intoxication or his sustaining

i	concussion. He had no reason to expect that he would be publicly
l	revealed to be a policeman that night. He was not so intoxicated

L d

1 that he could not have got himself home without gross impropriety

of behaviour.

The Tribunal is not persuaded any provocation on

his part contributed to his being violently assaulted. His acts in the presence of Mr. Lovie are therefore to be considered as the acts of a member of the Australian Federal Police whose powers of judgment and self-control had been substantially impaired by no fault, relevant to the decision of the Tribunal, of his own. But, so considered, they were yet, in the Tribunal's judgment, acts unbecoming such a member. The Tribunal is persuaded, upon the

b	whole of the evidence, that Constable Sloane's powers of judgment and self-control were not so greatly impaired as to raise a doubt that he acted in a manner unbecoming a member of the Australian Federal Police. The Tribunal is persuaded that he chose to indulge, rather than to suppress in the presence of a member of
the public who had done nothing to displease him, his strong feelings of anger by giving those feelings violent expression. The Tribunal is persuaded that Constable Sloane retained sufficient judgment to recognise the gross impropriety of what he was doing and saying, and sufficient self-control to refrain, if he had chosen, from doing and saying those things. Considered as

the acts of a member of the Australian Federal Police whose mind was undisturbed by alcohol or trauma, what Constable Sloane did and said in Mr. Lovie's presence was in the Tribunal's opinion plainly to act in a manner unbecoming such a member. The disturbance of Constable Sloane's mind was not such, in the Tribunal's opinion, as to allow a different conclusion in respect of the disciplinary offence charged.

12. The decision of the Tribunal is that it finds Constable Sloane guilty of the disciplinary offence charged, of which the notice under Regulation 19 of the Australian Federal Police (Discipline) Resulations is dated 28 August 1984.

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[1985] AFPDT 1

25 Sep 1985