Commissioner of Police v Stanley

[1994] AFPDT 2

FEDERAL POLICE DISCIPLIHARP TRIBUIJAL

No PPDT 4 of 1994

THE COMMZSSZQBBB OF POLIa

Complainant

- and -

Respondent

Coram:	Justice Olney, Deputy President
Place:	Sydney
Decision:	23 November 1994
Reasons	9 December 1994

published:

ONS FOR DECISIOU

By notification dated 14 March 1994 a Deputy Commissioner of the Australian Federal Police (the AFP) gave notice to Monica Gail Stanley, a member of the AFP of the institution of proceedings against her for a disciplinary offence. The nature and particulars of the alleged offence as set out in the notification are:

THAT on 21 October 1993 at Sydney, you, Monica Gail STANLEY, a member of the Australian Federal Police in the State of New South Wales, did contravene or fail to comply with a provision of Divieion 1 of the Australian Federal Police (Discipline) Regulations, namely, regulation 7 thereof, in that, in the course of your duty, you knowingly made a written statement that is false.

PARTICULARS of the false written statement are that:

(a) on Form ~ ~ ~ 6 8 0 ( 8 / 8 9 ) , entitled 'Occupational Injury, Illness or Incident Report' signed by you and dated 21 October 1993, in answer to paragraph 'C', entitled 'How incident occurred' you stated 'I was walking down the stairs from the 6th Floor to the 5th Floor in RHQ when I tripped on the 2nd last stair'.

(b) on a Medical Certificate issued by the Workcover Authority signed by you and dated 19 October 1993, in answer to the notation 'Cause of Injury' you stated 'Trip on stairs in Headquarters building'.

(C) on Form SRC 16 4/93, entitled 'Claim for Rehabilitation and Compensation' signed by you and dated 21 October 1993, in answer to Question 19, which states 'The current injury/illneas happened: you ticked Box A, alongside which box is the notation 'While working at your usual place of work'.

(d)	on Form SRC 16 4/93, entitled 'Claim for Rehabilitation and Compensation' signed by you and dated 21 October 1993, in answer to Question 20, which asks 'What is the address or location where the injury/illness occurred?' you stated '110 Goulburn Street Sydney Australian Federal Police HQ'.
(e)	on Form SRC 16 4/93, entitled 'Claim for Rehabilitation and Compensation' signed by you and dated 21 October 1993, in answer to Question 21, which asks 'What is the exact location, within the above address, where the injury/illness occurred?' you stated 'Fire stairs - between Floors 5 & 6'.
(f)	on Form SRC 16 4/93, entitled 'Claim for Rehabilitation and Compensation' signed by you and dated 21 October 1993, in answer to Question 23, which asks 'Describe in detail what events contributed to your injury/illness. If there was a sequence of events, we need to know: what started the sequence of events; the sequence of events; the final result' you stated 'I tripped on the 2nd last stair falling to the platform. I was holding on to stair rail at time which
prevented me from falling completely. However, in doing so I
twisted my right knee. Sudden severe pain felt in right knee.

I experienced trouble in walking and sitting'.

(g) on Form SRC 16 4/93, entitled 'Claim for Rehabilitation and Compensation' signed by you and dated 21 October 1993, in answer to Question 24, which asks 'Fully describe any equipment or machinery involved in the injury/illness3 you stated 'Fire stairs'.

The respondent denies the charge.

The matter was heard by the Tribunal on 10 October 1994 and 23

November 1994. The Commissioner was represented by Mr M.

Chilcott and the respondent by Mr R. Hood. At the conclusion

of the evidence and final addresses I dismissed the charge and ordered the Commissioner to pay the respondent's costs. At the time I indicated that I would later publish my reasons for

dismissing the charge, which I now do.

The respondent (who I will hereafter refer to as Stanley)

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admits making the various statements alleged in the

notification. She denies that they or any of them are false.

The Commissioner has the onus of proving the allegation of falsehood on the balance of probabilities.

The Commissioner called 5 witnesses in support of his case.

They were :

Detective Superintendent George Burton of the

Internal Investigation Division, Eastern Region

Branch, Sydney.

Detective Constable Robyn Joy McLaren who is presently on maternity leave but who at the time relevant to the proceedings was attached to the Drug Targeting Branch at AFP Headquarters in Sydney.

Detective Constable Alan George Sutherland, who at the relevant time was an acting Sergeant in charge of a team in the Drug Targeting Branch.

Christopher John Howarth, a security officer employed by MSS Security Services at AFP Headquarters in Sydney.

Constable Christopher Donald Noble who at the relevant time was attached to the Drug Targeting Branch in Sydney.

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Stanley, McLaren and Noble were all members of the same team of which Sutherland was the supervisor at the relevant time.

All of the witnesses called by the Commissioner gave evidence on 10 October 1994.

On 23 November 1994 Stanley gave evidence as did the following witnesses called by her.

Detective Sergeant Ronald Arthur Lawson

Detective Constable Harold Nasko

Detective Sergeant Susan Karen Thomas

Detective Constable Hugh Barnes

Detective Sergeant Brian John Olson

The facts recited in the following two paragraphs have been proved to my satisfaction, there being no contention between the parties as to any of the matters referred to.

Stanley has been a member of the AFP since 1983. She presently holds the rank of detective constable and is married to Detective Constable Hugh Barnes. They live near Wollongong. Normally Stanley travels to work by train but on occasions she has been offered a lift by Detective Superintendent Guy Slater. Detective Sergeant McKinnon, another AFP officer stationed at headquarters in Sydney, lives

near Stanley. On the evening of Sunday 17 October 1993

McKinnon arranged for Stanley to pick up an AE'P car then in

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his possession with a view to her returning it to headquarters the following day. Stanley drove McKinnonls car to work on the morning of Monday 18 October 1993 and parked it in the car park inside the building. She then went to the 10th floor where there are change rooms and other recreational facilities, changed into running gear and went for a run.

She is recorded as having left the building at 7.04am and returning at 7.37am. On her way out of the building she left her keys and warrant at the ground floor security office with Howarth who was then on duty. When she returned, she retrieved her keys and warrant from Howarth and proceeded to the lifts and thence to the 10th floor where she did some exercises before showering and dressing for work. During that morning Stanley returned the keys to McKinnon's car to the 6th floor of the building. Later in the morning she had occasion to go to the 6th floor via the stairwell to lodge some listening device tapes in a vault on that floor. S he was observed by Noble as having some trouble with one of her legs. She finished work at about 4.00pm on that day. On Tuesday 19 and Wednesday 20 October 1993 Stanley did not report for work. On 19 October 1993 she attended her local medical practitioner who certified her unfit for work for 2 days. She described her injury to the doctor as "knee strain" and gave the cause of the injury as "trip on stairs in headquarters building". The date of the injury was given as "18.10.93". On each of 19 and 20 October 1993 Stanley telephoned her place of employment and advised that she would not be in. On each occasion a note to that effect was left

on Sutherland's desk.

Stanley returned to work on Thursday 21 October 1993. During that day she completed the various forms relating to compensation and related matters referred to in the notification and left them on Sutherland's desk. The forms did not come to Sutherland's notice until about 4.30pm on 21 October 1993 by which time Stanley had left for the day.

Sutherland refused to sign the compensation forms and discussed the matter with his superior officer Detective Superintendent McGufficke on the afternoon of 21 October 1993. McGufficke requested Sutherland to submit a report which

Sutherland did on 26 October 1993. On 13 December 1993,

after being served with a direction under the Complaints

(Australian Federal Police) Act 1981 Stanley took part in a

recorded interview with Burton and Detective Sergeant Hoskins.

A transcript of the interview is exhibit 1 in the proceedings.

I now turn to the evidence called on behalf of the

Commissioner. The first witness called was Burton whose evidence was largely formal, involving the production of the documents referred to in the notification and the transcript of his interview with Stanley on 13 December 1993.

McLaren gave evidence that on 18 October 1993 she arrived at work at about 8.30am and she recalled between 8.30 and 9.00am having had a "chat" with Stanley and at least one other AFP officer who she could not now identify. She said that the

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conversation involved a discussion as to what exercise the run this morning and my leg gave way" - or "gave out" . A little while later in the same conversation Stanley said "I went for a run before work this morning and my leg gave way". McLaren could not remember how long the conversation continued, who took part in it or anything else that was said. At a later date, after she became aware that Sutherland had refused to sign Stanley's compensation forms, she said to Stanley "Well, how did you hurt your leg? I thought you hurt it running" to which Stanley replied "No, I hurt it when I was walking up the stairs".

people concerned had done the night before and on that day.

In cross-examination McLaren asserted that the conversation

involving Stanley on 18 October 1993 took place whilst she (McLaren) was sitting at her work desk (being one desk in a group of 4 cubicles separated by dividers) whilst Stanley was standing up, leaning across a divider at the rear of McLaren's work station. So far as she was aware Sutherland did not hear her conversation with Stanley on 18 October 1993 but he may have.

Sutherland later spoke to her about what Stanley had said. She said to Sutherland, "Well, I thought she said that she hurt it whilst she was running" and then added "but I'll have to check with Chris (i.e. Constable Noble) because I think he

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was present at the time".

When questioned as to why she wanted to "check with Chris"

McLaren said:

Because I just wanted t o c l a r i f y . I just wanted t o make sure that I

was d e f i n i t e l y hearing, you know, hearing the r ight answer

(T 31 l i n e s 19-21).

Later she said:

I wanted him t o corroborate

( T 31 l i n e 2 7 ) .

She further said that she had spoken to Noble the same day and he had said that Stanley had said she had hurt her leg running. At a later stage she probably went back and told Sutherland that she had spoken to Noble.

McLaren recalled only one conversation with Stanley on 18 October 1993. She did not recall going upstairs to the 6th floor with Stanley but she did recall having told Burton that Stanley had said she had been upstairs. When pressed she agreed that Stanley could have said "I tripped on the stairs this morning and hurt my knee" and she also agreed that it was possible that on 18 October 1993 she had gone with Noble to the 6th floor and that Stanley was with her but she had no recollection of any conversation with Stanley and Noble on the stairwell.

Sutherland said he arrived at work at about 8.30am on the morning of 18 October 1993. He had a sergeants1 meeting to

attend and on his way there he had a conversation with Stanley

who approached him and said:

I got to work early. I got a lift from Guy Slater; I've been out

running and I've injured my knee.

Sutherland could not recall making any response. Following the meeting, which lasted about 15 to 20 minutes, he returned to his desk. A conversation was taking place next to him at the desk where McLaren then sat. The conversation involved McLaren, Stanley and some other people who did not belong to his team and was in relation to Stanley being out running

earlier that day. He said he heard Stanley say:

I've been out running this morning; I've injured my knee.

He says he also heard Stanley say:

I got a lift from Guy Slater this morning and I was in early.

And Stanley also said that she had just been cleared by the doctor for running at the end of June.

Later, Sutherland gave a slightly different version of this conversation in that he said Stanley had said that she injured her knee whilst running. The first conversation had taken place in the corridor behind Sutherland's desk whilst the second was near McLaren's desk with McLaren seated and Stanley leaning over the corner of the partition of the cubicle area.

At the time Sutherland says he was standing near his desk.

When he found Stanley's compensation forms on his desk on the afternoon of 21 October 1993 he read through them looking for the place where he as supervisor was required to sign. As he

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read them he realised that the cause of injury referred to in the forms was not what he had been told and he determined that he would not sign them. He says it was his intention to discuss the matter with Stanley but she had gone home.

Instead, he took the forms to McGufficke and told him that he was not going to sign them.

Sutherland was cross-examined at some length. He maintained his evidence that on 18 October 1993 there had been two conversations involving Stanley making reference to injuring her knee. The first at about 8.30am when only he and Stanley were present and the second at about 8.50am involving McLaren, in which he took no actual part. He agreed that in a report dated 26 October 1993 which he prepared for his officer-in- charge he referred to only one conversation which had taken place at 8.30am at which, he said in the report, McLaren was also present.

On Friday 22 October 1993 Sutherland was engaged in gathering information for his report to McGufficke. He said he spoke to both McLaren and Noble to ascertain if either had taken the telephone calls from Stanley on the Tuesday and Wednesday but neither recalled having done so. He made no enquiry from

Stanley on this matter although she was at work that day.	He
said "I didn't think of that".

In the course of gathering information on 22 October 1993 Sutherland asked McLaren about the conversation with Stanley

on 18 October 1993.	He also asked Noble but did not speak to
Stanley.

I propose to deal next with Noble's evidence which was given

after that of Howarth.

Noble recalled a conversation with Stanley on 18 October 1993 which had taken place in the stairwell between the 5th and 6th floors at approximately 10.15am. He and Stanley had occasion to go to the 6th floor to lodge some listening device tapes in a vault on that floor. He said he noticed Stanley was limping up the stairs, something he first noticed in the stairwell area. He said to her "What have you done to your

leg". The transcript records Noble's evidence as this aspect

of his evidence thus:

Now I am going to ask you what was said and I am going to ask you to put the conversation in terms of I said, she said if you can. What was said? --- To the best of my recollection I said - her limping prompted me, I said, "What have you done to your leg" and she said, "I hurt my knee running before" - "I hurt my knee beforen - what was it, "I hurst my knee before work" - "running before work this morning", something - that's the best of my recollection.

Noble said that nothing more was said and he and Stanley continued up the stairs.

Under cross-examination Noble said that Burton had asked him for a report about the matter on about 18 November 1993. He was able to recall the date only by reference to the listening device log sheets.

He agreed that a third officer may have been present in the

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stairwell on the occasion in question but could not recall that being so. Nor could he recall any discussion with any person other than Burton about the matter, nor any conversation about taking a phone call on 19 or 20 October

1993. He specifically said that he had no recollection of Sutherland asking about receiving the phone calls and agreed that he would remember if Sutherland had asked him for a report.

Howarth has been employed at the AFP headquarters in Sydney for the last two years. His duty is to check persons entering the building and persons wishing to visit others within the building. His station is on the ground floor in a booth that has glass from counter height to the ceiling.

There is a break in the glass at counter level that allows things to be passed through.

In the course of his work Howarth has come to know officers who work in the building, including Stanley.

His evidence was that Stanley was in the habit of going running 2 or 3 times a week roughly between 6.45 and 7.00am and that she is usually gone for about one hour. It is her practice when leaving the building to leave her keys with Howarth and to collect them from him on her return. It is his usual practice to ask her on her return how her run was.

He said that he recalls that on 18 October 1993 Stanley left

return there was a conversation as follows:

the building at around 6.50am and returned at about 7.30am.

Stanley:	Hello Chris
Howarth:	How was your run?
Stanley :	It was fine. My knee is a bit sore and
it's playing up
Howarth :	What is the problem?
Stanley:	My knee is a bit sore and it's playing up
Howarth :	You should think about going to see a sports therapist or wearing a thermal skin knee guard

Howarth said that Stanley made no reply and he then handed her keys to her whereupon she proceeded in to the building.

Howarth was first cross-examined as to his recollection of Stanley's habit of going running in the period preceding 18 October 1993. He said that in the immediately preceding week she had gone 2 or 3 times and in the preceding month, about 8 to 12 times; and that she followed the same procedure, namely, leaving at about 6.45 to 7.00am and returning one hour later.

He agreed that in December 1993 he was asked to recall if he remembered anything unusual about an occasion when Stanley went running in September or October 1993 to which he replied that there was one occasion when she stayed out for about half an hour. The date 18 October 1993 was mentioned to him and he was shown some photographs said to have been taken on that

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day. He made a statement to Burton after it had been suggested to him that the topic of interest had to do with Stanley 'S knee. In the course of that statement he related a conversation with Stanley which referred to a number of other matters apart from those mentioned in his evidence-in-chief.

He agreed that the conversation would have taken about half a minute. After being referred to the times shown on a security video of Stanley entering the building at 7.37am and of her arriving at the lift only 20 seconds later he agreed that he may be mistaken about the conversation he had on that day.

The Commissioner's case was clearly not particularly strong. Howarth's evidence lacked any probative value. He obviously had no clear independent recollection of 18 October 1993 and what recollection he did have appears to have been the result of suggestions made in the course of being interviewed.

McLaren's evidence lacked conviction. She could recall only what Stanley said in the conversation in question, but was able to remember that Stanley made the same statement twice. She was unable to explain why when questioned about the conversation by Sutherland she had said she would have to check with Noble when there was no suggestion that Noble was present at the conversation. She seems to have been clearly mistaken when she said Sutherland's enquiry about the conversation was on the same day. But in any event, the concession in cross-examination that Stanley could have said

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"I tripped on the stairs this morning and hurt my knee"

destroyed any probative value her other evidence may have had.

Noble's evidence was quite extraordinary. He was called for one purpose only namely to say what Stanley said to him on the stairwell on the morning of 18 October 1993. The extract from the transcript of his attempt to answer this simple question displays a degree of uncertainty one would not expect from an experienced police officer speaking from a clear recollection. What the transcript does not disclose is that during this phase of his evidence he tended to took towards Burton who was seated in the rear of the hearing room before answering. I gained the impression that Noble gave his evidence with a considerable degree of reluctance. He lacked conviction. Furthermore, his evidence was in direct conflict with that of McLaren and Sutherland, both of whom said they spoke to him about what Stanley had said.

I also found Sutherland's evidence lacking in conviction. He

insisted that Stanley had made the statement about injuring her knee on two occasions on 18 October 1993; first at about 8.30am and later at about 8.50am. But he was unable to explain why in his report of 26 October 1993 he had referred only to the statement made at 8.30am and why he said McLaren was also present when this was contrary to his evidence. Perhaps the most puzzling aspect of his evidence was his continued insistence that he had heard Stanley say on two occasions on 18 October 1993 that she had been given a lift to

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work by Slater when there was ample evidence to show that Stanley had not had a lift with Slater on that day and further McLaren could remember nothing to that effect . Had Sutherland been prepared to concede that he may have been mistaken about the Slater statement his evidence may have been more compelling. And if it be the truth that in his efforts to find out who had taken the phone messages from Stanley on 19 and 20 October 1993 he simply did not think to ask Stanley, the whole integrity of his information gathering on Friday 22 October 1993 must be suspect.

Despite the flaws in the Commissioner's case, Stanley elected to give evidence, and to call a number of witnesses in support. I do not propose analysing this aspect of the evidence in the same detail as for the Commissioner's case.

Stanley carried no onus of proof. Her own evidence was given

in a straight forward manner. She was not shaken in cross- examination and in a number of respects her testimony was corroborated by independent witnesses.

Stanley said that in 1993, during January and the first week of February she had gone running most mornings before work but had not done so again until October 1993. In 1991-92 she had been in the habit of running for about an hour but in 1993 she had run for a maximum of 35 to 40 minutes.

When she returned to the building at 7.37am on 18 October 1993 she went to the security guard who handed her keys and warrant

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to her. She had a short conversation in which she said "Hi Chris, it's going to be a nice day" and then proceeded to the lift, and thence to the 10th floor. Nasko was in the gym on the 10th floor and she had a short conversation with him before showering and dressing for work. She saw Thomas in

the showers and spoke to her briefly. It took her about 30

minutes to shower and change for work. She then went to the 5th floor where she dropped her bags at her desk and then went to the 6th floor, via the stairwell, where she handed the keys of McKinnon's car to a clerk and completed the necessary record and then returned to the stairwell. On her way down, on the second last stair she tripped and twisted her knee.

She felt instant pain. She hobbled to her desk. It was

then about 8.25am or 8.27am.	She sat at her desk with her
leg supported by a chair.

She had a conversation with McLaren in which they discussed the weekend, in the course of which she told McLaren that she had been for a run that morning. Only Stanley and McLaren

were present. At about this time Sutherland arrived carrying

a cup of coffee. Stanley said to him "I tripped on the stairs this morning. I've hurt my knee" to which Sutherland replied "hmm" and told her to do her work. He then walked off.

On the morning of 18 October 1993 Stanley says she had occasion to go to the 6th floor with McLaren and Noble to lodge listening device tapes in a vault. She walked to the

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stairwell but had difficulty mounting the stairs. She told

McLaren and Noble to go ahead which they did. Noble asked "What have you done to your knee" to which Stanley replied "I hurt it this morning".

During that morning she telephoned her husband at home; and also had a conversation with Lawson when she told him she had tripped on the stairs. In the cafeteria at lunch time she spoke briefly to Nasko while waiting in the queue and told him she had hurt her leg that morning.

Stanley disputes the evidence of the witnesses called on behalf of the Commissioner, which she says is wrong.

Lawson recalled that on the morning of 18 October 1993 he noticed Stanley walk past where he was working. Stanley said

that she had fallen down the stairs that morning.	Lawson
observed that she favoured her leg.

In cross-examination he said that the conversation with Stanley took place between 9.00am and 11.00am and that the flavour of the conversation was that she had hurt her leg before she started work and that she referred to the stairs.

Nasko's evidence did not add anything one way or the other to the matters in issue.

Thomas recalled seeing Stanley in the shower room on the

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morning in question.	It was clearly after Stanley had
returned from her run.	She (Thomas) observed her walk past

the door to the shower.	At the time she appeared to walk
normally.

Barnes recalled that Stanley had telephoned him on the morning of 18 October 1993 about 9.00am when she told him that she had tripped on the stairs and injured her knee.

Olson gave evidence as to Stanley's good character.

As I have indicated above I found Stanley's evidence credible whilst that of the Commissioner's witnesses lacked conviction. For these reasons I was not satisfied on the balance of probabilities that the statements referred to in the notification were false. Indeed, in my opinion, it is more probably than not that the statements made by Stanley were true.

I have not found it necessary to make any findings concerning several aspects of the evidence by which Stanley sought to call into question Sutherland's motives in refusing to sign her compensation papers.

I certify that this and the

preceding 18 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated: 7 - '79.y.