Commissioner of Police v Tainton

[1991] AFPDT 1

IN THE FEDERAL POLICE	)
DISCIPLINARY TRIBUNAL )	1 No. FPDT 2 of 1991

BETWEEN:  COMMISSIONER OF POLICE

Applicant

AND :  CONSTABLE MICHAEL TAINTON

Respondent

ORDER

THE PRESIDENT	(FOSTER J)
28 MARCH 1991 MELBOURNE

THE TRIBUNAL ORDERS,:

1.    That both charges be dismissed.

IN THE FEDERAL POLICE	)	No. FPDT 2 of 1991
DISCIPLINARY TRIBUNAL )	1

BETWEEN:  COMMISSIONER OF POLICE

Applicant

AND :  CONSTABLE MICHAEL TAINTON

Respondent

REASONS FOR DECISION
EXTEMPORE

FOSTER J (PRESIDENT): In these proceedings it is alleged that Constable Michael Tainton has committed a disciplinary offence under regulation 18(l)(d) of the Australian Federal Police Discipline ~egulations. The nature and particulars of that alleged offence are set out in the formal notification as follows:

"That on 7 April 1990, at Melbourne in the State of Victoria, you Michael Tainton, a member of the Australian Federal Police,

were guilty of improper conduct otherwise	than in your official capacity in that
You;
(a) pointed a revolver at Constable Ashley Leanne Giraud and Jason Connor, and
(b) pointed a revolver at Constable Ashley Leanne Giraud's cat and said words to the effect of 'I could blow you away1."

Although reference is made in the evidence to two
occasions on which the constable is alleged to have pointed
the revolver at the cat, it is accepted that the occasion

referred to in the statement of offence is an occasion referred to in the evidence of Constable Giraud when the cat was said to be outside the premises where the earlier offence was alleged to have been committed.

The proceedings for a disciplinary offence under the regulations must, if a finding of guilt is to be recorded, be proved beyond reasonable doubt. Accordingly, I approach this matter on the basis that the applicant Commissioner bears the onus throughout of proving the alleged offence to the standard required in a criminal trial.

I also have before me evidence of the general good character of the constable and also of his particular character in relation to his police duties. He has been spoken of highly by witnesses in a position to form an opinion of him as being a conscientious and efficient constable dedicated to his police work. It also appears that he has a general reputation for honesty. These matters must, of

course, be taken into account in his favour, in my	determination of the case.
The offences are alleged to have taken place in premises at 17 Pendle Street, Box Hill, in the State of Victoria. The premises consist of a home in a garden block. At the relevant time it was leased by Constable Tainton and occupied by him and Constable Giraud, and also a Mr Donnelly, who was also a constable, but in the Victorian Police Force.

Put in broad terms the facts relied upon in relation to the first offence are that at about 2 o'clock in the morning of the day in question Constable Giraud in company with Mr Connor, a witness in these proceedings, was in the hallway of these premises, that Constable Tainton was also in the hallway, and that whilst they were in close proximity to him, Constable Tainton pointed his service revolver at them, waving it on a horizontal plane with the barrel directed towards them.

The alleged facts in relation to the second offence charged is that at a point of time later on in the same night Constable Tainton pointed the same service revolver at Constable Giraud's cat, whilst it was sitting on a fence at the side of the house.

It is asserted also that Constable Tainton was
affected by liquor at the time of the offences, although I do

not understand it to be claimed that he was so affected as to

be incapable of knowing what he was doing or of remembering it	thereafter.
Constable Tainton in sworn evidence has categorically denied either of the incidents. He has not given any evidence as to what in fact he was doing around about that time on the night in question but he has indicated that, from a searching of his recollection and any available records, he is not able to recall anything in that regard that

can be of assistance to the Tribunal.

Constable Giraud made no immediate complaint to the Police authorities of these alleged incidents. She made no formal complaint in relation to them until 31 July. She then complained, in accordance with established procedures to Detective Superintendent Moses who has given evidence in these proteedings. Some four months had, therefore, elapsed between the alleged incidents and the making of the complaint. This lapse of time is relied upon by counsel for Constable Tainton as bearing upon the general reliability and acceptability of the evidence of Constable Giraud.

It is, of course, a quite significant time lapse. She has given a variety of reasons for it and I have taken them all into account in my general assessment of the evidence in the case. It is quite clear that there was a regrettable amount of friction in this small household, particularly in the months of March, April and May. It seems, from the

member of the household in January of 1990, and that she	evidence, that Constable Giraud came to stay as a paying
departed in May of that year to find accommodation elsewhere. Certainly it seems that from March onwards there was increasing friction between herself and Constable Tainton. Examples of that friction have been given in the evidence. There is no point in my dwelling upon them in these reasons.

This case does not, of course, involve the Tribunal

in making findings as to the rights and wrongs of the various conflicts that occurred between these young people during that time . It is significant, however, that there was such friction and that it led, as I find, to a significant degree of bad feeling between them.

I am satisfied that there was an incident in early March involving Constable Giraud's riding of a motor bike with a young person as passenger along the road outside the house. This occurred during Constable Tainton's birthday party which was being held on the premises. On the basis of a complaint having been made to him by a superior officer who was present, Constable Tainton reprimanded Constable Giraud for this conduct. It seems fairly clear that this particular incident was the cause of some resentment on the part of Constable Giraud towards Constable Tainton. There were other incidents as well which might be thought of as being fairly minor matters but no doubt all contributed to the creation of what fairly obviously became a strained and unpleasant relationship

between them.

Constable Giraud's complaint that brought about these proceedings was made two to three weeks after she had been the recipient of an official complaint about herself made by Constable Tainton. The substance of that complaint is not entirely clear on the evidence, but it was obviously a matter that was taken seriously at the time. In my view, it was a complaint which was a source of considerable annoyance to

Constable Giraud.

Sitting as one does as both judge and jury in a matter of this kind, one must take into account the impressions that witnesses create in the giving of their evidence in determining questions of reliability. I must record that I was not favourably impressed by Constable Giraud's demeanour in her giving of her evidence.

Her evidence was also in conflict in certain respects with the evidence given by Mr Connor who was also called as a witness by the Commissioner. The alleged incident took place in a very short space of time and also in a very small geographical area. Clearly in such constraints of time and space it is not unusual nor unnatural for discrepancies to occur between the recollections of witnesses. In evaluating evidence of eyewitnesses in such situations it is customary and proper to make allowances for those facts.

There were, however, fairly significant

discrepancies in the evidence of Constable Giraud, not only

when compared with the evidence of Mr Connor, but also with

prior written statements that she had made in official documents which have been tendered in this case. In her official complaint of 31 July she refers to Constable Tainton as coming through the front door, having just left his car in the drive. She asserts in her statement that he was in' an obviously inebriated condition and that her companion,

Mr Connor, was moved to make a remark at the time about police

drinking and driving.

Thereupon, her statement continues, Constable Tainton produced his service revolver from a position at his back and made the somewhat menacing action with it which is complained of. That evidence as to Mr Connor's remarks and the sequence of events thereafter does not form part of the evidence she gives in this case. The making of the comment is denied by Mr Connor.

Indeed, on M r Connor's version as given in evidence there was no question of seeing Tainton come through the front door at all, although in an earlier part of his evidence it might have been reasonably inferred that that was what he was saying. The ultimate position so far as he was concerned was that he heard the car draw up and he heard the front door being opened. During those events, he and Constable Giraud were in fact in her room, the door from that room into the

hall being then closed.

I have been occasioned considerable difficulty in arriving at my decision in this case because of the apparent corroborative value of Mr Connor's evidence. I found him to be a fairly impressive witness. I felt that he was a witness on whom reliance could reasonably be placed, all things being equal. There were, however, some significant discrepancies between his evidence and that of Constable Giraud, to one of

which I have already made reference. Also as against his sworn testimony, there is, of course, the sworn testimony of Constable Tainton himself.

I have given anxious consideration as to what my findings should be. There is undoubtedly a hard core of consistent evidence as to an occurrence at the time of the type deposed to by Constable Giraud and Mr Connor. Whatever the difference might be in matters of detail, they both depose to an incident in which Constable Tainton had his service revolver in his hand and was waving it about in front of him, pointing it generally in their direction.

I ask myself what is my state of mind as to the establishment of those essential facts. Their evidence certainly engenders ' in me a very significant state of suspicion that the incident complained of did occur.

I must take into account, however, the fact that Mr Connor and Constable Giraud had an affectionate relationship	for a considerable period of time and that he cannot be
regarded as an entirely independent witness. Moreover, Mr Connor himself made no official complaint about this matter. Nor, indeed, did he make any complaint about it to Constable Tainton, although he saw him on numerous occasions after that night.

In the upshot I come to the conclusion, on the whole

of the evidence, that despite the strong suspicion I hold, that suspicion does not flower into satisfaction beyond reasonable doubt that the respondent committed the major offence charges.

In relation to the second charge, I have the direct evidence only of Constables Giraud and Tainton, although Mr Connor gives some evidence as to a similar occurrence earlier in the night. Again, although I certainly entertain suspicion that the cat was threatened in the manner complained of, I do not find myself satisfied beyond reasonable doubt, having regard to the whole of the evidence in the case, that the offence was committed.

Accordingly, I dismiss both charges.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Decision herein of his Honour Mr Justice M. L. Foster, President D i s c i p l i n a 1 ~ 2 ~ ~ the Federal Police

Associate:
Date: 28 MARCH 1991