Ferdinands v Commissioner of Police (No. 3) No. Dcaat-01-60

Case •

[2003] SADC 28

•

21 February 2003

Trevor K Ferdinands  v  Commissioner of Police (No. 3)
[2003] SADC 28

Civil
Judge David Smith

Introduction – history

  1. This appeal has had a considerable history.  I summarise it briefly.  On the 6th January 1998, Trevor Kingsley Ferdinands (“the appellant”), who was then a serving police officer, was charged as follows:

    “Charge

    I, Darryl John Clarke, Superintendent of Police of Adelaide, hereby charge you for that on 1 April 1997 at Adelaide and Canberra, being an employee of the Force, you were absent without permission from your duties.

    Regulation 27(4)(c) of the Police Regulations, 1982.

    Particulars of the Charge

    It is alleged that:

    1.On 1 April 1997 you were stationed at the Firearms Section.

    2.On 1 April 1997 you were rostered for duty at the Firearms Section, Flinders Street, Adelaide.

    3.You did not report for duty at all that day.

    4.You were absent from duty without permission.”

  2. He pleaded not guilty.  Then on the 27th March 1998 he changed his plea to guilty.  On about the 10th July 1998, by way of penalty, he was reprimanded and transferred from the Firearms Section to the City Watch House – Adelaide Division.

  3. On the 8th March 2001, notwithstanding his plea of guilty and the inordinate delay, he appealed to this Court sitting in its Administrative and Disciplinary Division pursuant to the Police (Complaints and Disciplinary Proceedings) Act 1985. The appeal was against both the conviction and the penalty. Section 46(4) of the said Act provides that an appeal must be instituted within one month of the making of the decision or order appealed against. However, by s42C of the District Court Act 1991 this Court is empowered to extend time even if the appeal time has elapsed. 

  4. In particular, in the appeal, the appellant sought the following orders:

    ·to extend time in which to appeal; and

    ·to set aside the penalty and rehear the disciplinary proceeding as a plea of not guilty or remit the matter for rehearing by the Tribunal as a plea of not guilty.

  5. This Court pursuant to ss42E to 42H of the District Court Act has robust powers on appeal which extends to granting the orders sought by the appellant.

  6. I received affidavit evidence, several documents and heard argument at various times between the 7th June 2001 and the 19th September 2001.  On the 1st November 2001 I published the first of the judgments in this matter, which culminated in me making the following orders:

    “Therefore, for the above reasons, I extend the time within which the appellant can appeal, to the 8th March 2001.  On the basis of the evidence before me I rescind the decision of the Deputy Commissioner of the 10th July 1998 and, insofar as it is necessary, the decision of the Tribunal referring the matter to the Commissioner of Police for penalty.  And finally, I remit the matter to the Police Disciplinary Tribunal with a direction that it accept a plea of not guilty from the appellant and proceed accordingly.”

    (see Ferdinands v Commissioner of Police (2001) 216 LSJS 193) (“first judgment”)

  7. Upon the publishing of that first judgment, counsel for the Commissioner protested courteously that the judgment determined the whole of the application whereas he and his client anticipated that I was dealing only with the application to extend time to appeal.  Indeed, that explained the failure of the Commissioner to answer a number of serious allegations made by the appellant against Sergeant Gary Simpson.  On the 12th December 2001 the respondent formally applied pursuant to Rule 84.12 of the District Court Rules to set aside the first judgment and orders.  In that application, I received as evidence the entire transcript including the transcript of directions hearings.  I accepted that there was some ambiguity in what was intended and so I set aside the first judgment.  In particular, I made the following order:

    “Accordingly pursuant to Rule 84.12 of the District Court Rules I set aside the orders made by me on 1st November 2001.  In particular, I set aside the order extending time in which the appellant can appeal and further I set aside the order rescinding the decision of the Deputy Commissioner of 10th July 1998 and the order remitting the matter to the Police Disciplinary Tribunal with the direction that it accept a plea of not guilty from the appellant.

    Necessarily the findings as to the part played by Sergeant Simpson in the matter of Mr Ferdinands’ plea back in July 1998 are set aside.”

    (see Ferdinands v Commissioner of Police No. 2 (2002) 218 LSJS 13) (“second judgment”)

  8. Accordingly, a new appeal hearing was required and relying on s42E(1) of the District Court Act, I decided to take evidence on all the issues raised by the appeal, including the merit of any defence to the charge that the appellant was in breach of Police Regulations on the 1st April 1997.  Accordingly, I made directions for the filing of further affidavit evidence from both sides and gave leave for the cross-examination of the various deponents.  The hearing was conducted over a period of 3 days on 20th  21st and 25th November 2002.  I received both oral and affidavit evidence and a number of documents were tendered by consent.  After hearing arguments on the 25th November 2002, I reserved my decision.

    Law

  9. What is set out hereunder is, in substance, a repeat of what I said about the applicable legal principles in the first judgment.  However, I repeat what is said there to give this judgment coherence.

  10. This appeal raises two issues, namely:-

    ·the circumstances in which a penalty based upon a plea of guilty will be set aside, and an appellant allowed to change his or her plea; and

    ·the principles upon which an application to extend time to prosecute a statute barred or stale appeal should be determined.

  11. It is clear that a plea of guilty is not an insurmountable barrier to an appeal against conviction; (see Barnes v McElroy [1924] SASR 41; Bull v Deed (1968) 16 SASR 236). However, the Court will not lightly set aside a conviction founded upon a plea of guilty. It must be established that the plea has resulted from:-

    ·A material mistake; or

    ·Some improper threat or promise;

    (see Hinton v O’Dea (1977) 16 SASR 234).

  12. In Bull v Deed (supra) at p237, Walters J said:-

    “But the circumstances in which a conviction founded on a plea of guilty may be set aside must be very exceptional.  It seems that the Court should accede to an application to quash the conviction only where it has been established to its satisfaction that the making of the plea has been induced by a material mistake, or by some improper threat or promise on the part of a police officer or other person in authority, and that but for the inducement, the plea would not have been made; and that if a plea of not guilty has been entered, there would have been a substantial issue to be tried (Halsbury, 3rd ed. vol. 10 p.521; R v Forde (1923) 2 KB 400 at 403).”

  13. Crucial to the basis upon which a Court would effectively allow a change of a plea on appeal, and therefore set aside a penalty or conviction, is whether or not there has been a miscarriage of justice.

  14. In respect of the issue of extension of time, s42C of the District Court Act confers a wide discretion.  In R v Trotter (1979) 22 SASR 64 at p65 Walters J said:-

    “... an application for extension of time to appeal will be refused, unless there are substantial grounds on the merits which seem to justify the Court in extending the time (R. v. Cullum (1942) 28 Cr. App. R 150). In dealing with the application, the court will consider whether there is any substantial point of law to be argued on appeal, and whether there exist any substantial grounds for apprehending a miscarriage of justice. And if the proposed notice of appeal or application for leave to appeal discloses no sufficient grounds of appeal, the application for extension of time will not be granted”.

  15. To the above parameters could be added those considerations relevant to the exercise of the Court’s discretion to strike out for want of prosecution, namely:-

    ·the length of the delay;

    ·the explanation for the delay

    ·hardship to the appellant if the application to extend is dismissed and the right to argue the appeal lost;

    ·the prejudice to the respondent if the extension is granted and argument on the appeal is allowed to proceed notwithstanding the delay; and

    ·the conduct of the respondent in the litigation;

    (see Ulowski v Miller [1968] SASR 277 at p280 per Bray CJ.)

  16. In Ulowski (supra) at 280 Bray CJ said “... It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules”.

    Evidence and Findings

  17. I have no hesitation in accepting as credible and reliable the evidence of Sergeant Gary Simpson, Sergeant Douglas Wyman (now retired) and Chief Superintendent John Minagall.  Where there is conflict, I prefer their evidence to that of the appellant.  I hesitate to regard the appellant as untruthful, but in some instances he was less than frank.  He has become disillusioned, angry and even paranoid about his treatment in the police force.  By some process which is difficult to identify this anger and paranoia has distorted the truth of what has happened at least in this matter.  He has reconstructed the events the subject of this matter to fit in with his conviction that he is being victimised and oppressed. 

  18. I now turn to the evidence.  The following narrative constitutes my findings.  I will identify any areas of contention and set out my specific findings as I proceed with the narrative. 

  19. On the 12th December 1996 Sergeant Gary Simpson (“Simpson”) took up his posting as supervisor of the Enquiry Unit of Firearms Branch in Flinders Street (111).  The appellant at that time had been working in Firearms Branch for some four to five years (86).  Simpson said that in the briefing for his new post he learned that the appellant “... was a marginal performer and the quality of his work was generally poor ... he was unpopular with other members of the unit due to personality conflicts ...” (see Exhibit R8 para 3).  Simpson decided to address this perceived difficulty, and in consultation with Inspector Cormak McCarron, who was the officer in charge of the Branch, he decided to give the appellant a special project to be carried out elsewhere than in the offices of the Branch where there was tension and conflict (see Exhibit R8 para 5).

  20. It so happened that the New Zealand Police Service had approached the Firearms Branch asking about the effectiveness of firearms control legislation in South Australia.  Accordingly, Simpson and Inspector McCarron decided that the appellant should research that topic.  They reasoned that it would not only enable the Branch to answer the New Zealand query but provide a worthwhile project for the appellant (113). 

  21. Simpson said, and I accept it to be so, that he discussed the proposal for the project with the appellant “either before or after Christmas or early in the New Year” (155).  He said also that the appellant readily agreed to it and was enthusiastic about it (117).  The appellant disagreed and said that the project did not come to his attention until as late as the 21st March 1997 when he signed the so-called contract.  I prefer the evidence of Simpson.  Why would he not convey what he and Inspector McCarron had in mind earlier than March?  Keeping the appellant in the dark about it would have been pointless.  I accept what Simpson said both as to the timing of informing the appellant of the project and as to the appellant’s enthusiastic reaction to it.

  22. Simpson obtained the consent of the officer in charge of Thebarton Barracks, Chief Superintendent John Minagall, to second the appellant to the Orderly Room at the Barracks from the 2nd January 1997 to the 2nd July 1997 in order to carry out the project.  The Chief Superintendent made it clear that the appellant was to remain answerable to, and under the control of, Simpson and that he would be under the supervision of Sergeant Wyman at the Orderly Room only for day to day administrative purposes and if there were any problems the secondment would be terminated (see Exhibit A7 and see also 271-292).

  23. The “placement” to use a neutral term was implemented by the completion of a Personal Movement Advice (PD162), dated the 23rd December 1996 (see Exhibit A5).  It appears that the appellant did not settle into this new placement until well into the New Year.  He took two weeks military leave (ie 4/1/97 to 17/1/97), and six weeks annual leave (ie 5/2/97 to 19/3/97) (150, 151). 

  24. On the 31st January 1997 Simpson signed what has been termed “the Contract” between himself and the appellant for the carrying out of the research project.  The appellant signed it upon his return from leave on the 21st March 1997 (see Exhibit A6, see also 151, 152).

  25. On the 21st March the appellant was supplied with a laptop computer (244). 

  26. I pause now to make findings about two contentious issues, namely the purpose of the placement and whether or not it was a secondment or a transfer.

  27. Firstly, the appellant contended that his placement at the Barracks to carry out the project was motivated by ill-will.  He said in effect that he was deliberately set-up by Simpson to fail (see Exhibit A6 paras 7-11).  I do not accept that.  First of all Simpson put this measure into place a mere 11 days after taking up his posting at Firearms Branch which was hardly sufficient time to work up any animosity towards the appellant.  In any event, I accept what Simpson said in his evidence, namely:

    “...  As I said, I was very keen and – not that I’m not now – but I was very keen then to do my job very well as a new sergeant and I considered more than anything that that project was going to be as a developmental process for Trevor Ferdinands, to be developed to go back into operational policing and develop skills and that sort of thing as part of his personal development.  That’s why I devised that thing for him to do.  But, on the same hand, he wasn’t getting along well at the firearms branch and I considered it best that he be removed from that environment to concentrate on the project, to give him time away and give him something worthwhile to do – a worthwhile occupation or worthwhile task – as well as giving the people at the firearms branch, if you like, a rest form him, too.”

    (113-114)

  28. On repeated questioning Simpson insisted that his motivation was the rehabilitation of the appellant’s career in the police force (see 156, 160, 161, 205 and 217).  The appellant’s insistence about this ulterior motive was insensible.  He offered nothing acceptable to support this serious allegation (see 79-81). 

  29. I now turn to the issue of whether there was a secondment or a transfer

  30. The appellant contended that he was transferred to Thebarton Barracks (ie Operations Support Command), not seconded.  The object of this contention was probably to demonstrate therefore that he could not be absent from duty from Firearms Branch if he was not part of that branch.  Seconded means a type of temporary placement as opposed to a transfer which is understood in the Police Force to be a permanent placement (142, 263). 

  31. The evidence overwhelmingly points to the appellant being seconded to Thebarton Barracks (see Exhibit A5 – Permanent Movement Advice PD162).  Simpson arranged it and throughout his evidence repeated that it was a secondment.  He added that he had no power or authority to transfer any members from Firearms Branch (142).  Sergeant Wyman who had the day to day administrative responsibility for the appellant also made that clear (250, 251, 255, 259, 263).  Indeed Chief Superintendent Minagall, in his evidence as opposed to his affidavit, would not even accord that status to the appellant’s placement but described it in the following terms:

    “... I merely think you changed your workplace.  I don’t regard it as either a transfer or a secondment ...”

    (274)

  32. What is abundantly clear is that the appellant was placed in the Orderly Room at Thebarton Barracks to carry out the Firearms Branch research project under Simpson’s control (185).  He was to do this in accordance with the so-called contract.  He was to be there until the 2nd July.  During that time, he was subject to the administrative authority of Sergeant Wyman.  Further, he was paid through Thebarton Barracks.  However, as Sergeant Wyman, Chief Superintendent Minagall and Simpson made clear, he remained part of the Firearms Branch.  The fact that he had some duties in the Orderly Room and was paid through Thebarton Barracks is not inconsistent with that.

  33. The appellant travelled to Canberra to attend a wedding of a friend on the Easter weekend of 1997 (ie Friday 28th March 1997 to Monday 31st March 1997) (9).  He said in evidence that it was his intention to “... access Australian National University for their resources and stuff like that ...”.  He said that he was “on duty”.  He was intending to stay on in Canberra.  However, upon hearing that enquiries were being made as to his whereabouts he caught a plane back to Adelaide on Tuesday the 1st April (9).  Simpson said that the appellant did not have any permission or authority to be working in Canberra and upon discovering that he was not at work in the Orderly Room but in Canberra on Tuesday the 1st April, he, Simpson, terminated the secondment and ordered him to return to work at the Firearms Branch in Flinders Street (169-171).

  34. The appellant said that Sergeant Wyman gave him 100 hours leave from the workplace to work on the project (14) (Exhibit A6 paras 14-19; Exhibit A5).  Sergeant Wyman did not agree with that (251).  Indeed, Sergeant Wyman made it clear in his evidence that he had no control over the activities of the appellant in relation to the project (255, 258).  Early in the appellant’s time at the Orderly Room he clearly aggravated Sergeant Wyman by his arbitrary coming and going (see Wyman’s report February 1997; Exhibits A6).  I find that the appellant had no permission to be absent from the workplace, much less in Canberra.  There were previous absences from the Thebarton Barracks which were to some extent tolerated by Simpson (203, 194, 195).  I am satisfied that the appellant was not only absent from the workplace on the 1st April 1997 but also not working on that day.  When in cross-examination the appellant was confronted with the false entries on the timesheet Exhibit R4, he claimed that upon arriving back from Canberra by aeroplane on the afternoon of the 1st April he then worked seven or eight hours into the early hours of the following morning (55-62).  In my view, that was patently untruthful and emerged for the first time during the cross-examination.  For instance, there was no mention of it to Inspector McCarron in the interview which occurred on the 6th May (70).  The timesheet was a fiction as was the claim of working on the project till 1.00 am or 2.00 am the following morning (62-76).

  35. The appellant was charged on the 6th January 1998 (see Exhibit A1).  On the 27th January 1998 he notified the Registrar of the Police Disciplinary Tribunal that he did not admit the charges (see Exhibit A1).  The appellant then said that Simpson said that “if he pleaded guilty he would be out of the section next day ...” (Exhibit A6 para 28).  Simpson categorically denied that allegation (240), and denied further allegations by the appellant of harassment and victimisation.  The appellant said that as a result of duress, harassment and victimisation he changed his plea to guilty on the 27th March 1998 (see Exhibit A1). 

  36. The appellant said that in early April 1998 he had second thoughts and contacted a certain Ms Karen Foale of the Police Disciplinary Tribunal in April 1998 and claimed that he told her that he wanted to change his plea back to not guilty.  He said that Ms Foale told him that he could not do that and accordingly his plea of guilty remained.  Ms Foale was not called by either party.

  1. In due course, on the 10th July 1998, the Commissioner by his deputy imposed the following penalty:

    ·reprimand;

    ·transfer to the City Watch House, Adelaide Division until the end of the year 2000.

    (see Exhibit A1)

  2. I unhesitatingly accept Simpson’s denial of subjecting the appellant to duress and harassment and of pressuring him to change his plea.  The appellant’s evidence about these matters is neither credible nor reliable.  As to the appellant’s evidence of the exchange with Ms Foale I find that even if it did take place as recounted by the appellant it does not change what I regard as established about his absence on the 1st April 1997.

  3. Such are the facts.

    Conclusion

  4. The relevant portions of Regulation 27(4)(c) of the Police Regulations 1982 provides:

    27. An employee of the Force shall be guilty of a breach of these regulations if the employee commits any of the offences set out below:

    .............................

    (4)   Neglect of Duty, which offence is committed where such employee, without good and sufficient cause-

    (c)is absent without permission from or is late for any duty, or”

  5. The evidence establishes, if necessary beyond reasonable doubt, that the appellant was absent without permission from his duties and therefore in breach of Reg. 27(4)(c).  There are some difficulties of form rather than substance with the wording of the particulars of the charge.  However, what is clear is that not being on leave and without permission the appellant was absent from his duty on the 1st April 1997.  He was in Canberra and in transit therefrom at a time when he should have been working on the research project.  The pith of the charge is that the appellant neglected or failed to attend to his duties on the 1st April 1997.  Even if I accepted that the appellant was entitled to work on the project elsewhere than the Orderly Room at the Thebarton Barracks it is nonetheless clear on the evidence that on the 1st April he was not attending to his duties at all.

  6. So there being no other evidence foreshadowed as available for the appellant in the event the matter be remitted for rehearing, I conclude that the Tribunal in the event of a trial would convict him of breaching Regulation 27(4)(c).

  7. Common to the discretionary considerations in respect of both the application to extend time to appeal and the application to change plea, is whether or not there exists substantial grounds for apprehending a miscarriage of justice (see Bull v Deed (supra) and R v Trotter (supra)).  So at the threshold I need to be convinced that the appellant has at least an arguable case so that to deprive him of the opportunity to prosecute it would give rise to an apprehension of a miscarriage of justice.  Often the court will not be in a position to be conclusive about this issue of merit and so needs only to reach the stage of being convinced that the appellant’s case is not wholly without merit (see Reeves v Leyland Motor Corporation of Australia Ltd (No. 2) (1984) 115 LSJS 62 per Cox J at 63). However, as indicated in this case I have heard sufficient evidence to reach the conclusion that the appellant’s case for defending this charge is wholly without merit. That being so, both applications fail at the threshold.

  8. I make it clear that I have categorically found that there has been no impropriety or irregularity by Sergeant Gary Simpson in connection with his dealings with the appellant and in particular as to the circumstances surrounding the appellant’s change of plea to guilty on the 27th March 1997.  My previous conclusions about the part played by Sergeant Simpson, based as they were on the unchallenged affidavit evidence of the appellant, now have no foundation whatsoever.  Indeed I am convinced that Sergeant Simpson acted with all propriety and consideration for his troubled staff member – the appellant.

  9. Accordingly, there being “no substantial grounds for apprehending a miscarriage of justice” there is no basis to extend time to appeal under s42C of the District Court Act and for the same reason there is no cogent reason within the meaning of s42E(3) of the said Act to depart from the decision of the Deputy Commissioner. 

  10. Therefore, pursuant to s42F(a) of the District Court Act I affirm the decision appealed against.  I will hear the parties as to costs.

Most Recent Citation
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