Hobart v Commissioner of Police

[1987] AFPDT 1

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t i m L : t h e iZsmmiz;ionsr ~f relict, i n r t a p e c t .2f a b r e a c h af

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F e d e r a l F o l i c e ~ Act 1331.

Australian Federal Police Act 1979. That instruction is that members of the Auatr~3lian Federal Folise shall promptly submit criminal uffense reports for all reparted offences. 7 july

1956 the Commissioner imposed on the appellant for that breach of

discipline the penalty of reducti~n in rank from the rank of

Sergeant to the grade of Senior Constable within the rank of

Cone Gable.

The appellant was a senior constabla in December 1983.

Sergeant Hobert Donaldson requested him to make enquiries at a

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service station managed by Donaldson's wife about the disappearance of an amount of cash - rather more than $100 - from

a safe in the service station. Txo employees were questioned by the appellant at the service station on 20 December 1983. Both denied any connection with any unlawful removal of money from the safe. The appellant then spoke to Donaldson about his questioning of the two men. Then he returned to the Woden Police Station, where he was stationed. His duty was, it was common ground, to promptly submit a report concerning the allegation that money had been taken from the safe. He did not do so. Some days later Donaldson told him that Donaldson's wife did not wish any further action to be taken in connection with the theft, and that the second of the two men he had questioned, one Dawson, would be making payments to her in respect of the lost money, but would continue in employment at the service station. Being so informed, the appellant refrained from making any report about the matter. He thought that there was no evidentiary basis for any charge against Dawson, and that in all the circumstances there was no need to make a report.

Th? membsr of the Tribunal xho heard the charge and made the determination that ths appellant Gas guilty, Mr. B.K. Maquire

Q.C., pointed out in his reasons for that decision that the

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offence was alleged to have been committed on 2 0 December 1933, the day on which the appellant spoke to Dawson at the service station. I respectfully agree with Mr. Maguire's observation in those reasons that he, in determining whether the appellant was guilty of the disciplinary offence charged, could not concern

himself xith any question as to whether after 2 0 December 1953

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there had been a further failure to comply with the requirement of General Instruction 13.6.a. that the appellant submit a report for the offence reported to him by Donaldson. But in determining what is the appropriate penalty in respect of that breach of discipline

the surrounding circumstances, including events which succeeded the commission of the offence, may be taken into account.

Nevertheless, it is for the breach which occurred on that day, 2 0

December 1333, that the penalty is to be imposed, not for the further failure in compliance with General Instruction 18.6.a. which occurred after Donaldson had indicated that his wife did not desire any further police action in the matter.

Failure in compliance with Instruction 18.6.a. may, in certain circumstances, raise no worse an inference than that laziness or inefficiency has marred a member's performance of his police duties. But such a failure will sometimes afford a ground for suspicion that some serious impropriety has occurred. An experienced member of the Australian Federal Police, as the appellant undoubtedly was, must be alert to avoid giving ground

for suspicion af that kind. The ~:ommissioner obzerved in tLlj reasons for the imposition al the penalty he imposed on rack, of

ths appell~nt and :srqeant Dunalds~n:

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"The character and credibility of both members has been brought into question and as such they do not meet the high standards I expect of all members but in particular my senior non-commissioned officers."

The failure to make the required report was an important circumstance in the sequence of events which brought about that

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state of affairs to which the Commissioner refers. It was a failure which materially contributed to raise the suspicion that the resources of the Australian Federal Police were being misused to serve the personal financial interest of a member's wife. Even on 20 December 1983, before the compromise betxeen Dawson and !4rs. Donaldson had been reported to him, an sxperienced member like the appellant should have been alert to the risk that a failure promptly to record the reported offence might give rise to suspicion of impropriety. The breach of discipline that day was a serious one.

In mitigation of punishment attention was drawn to the difficult position in which a member is placed when his superior requests that he undertake a task such as Sergeant Donaldson proposed. But performance of the task was one thing : abstention from reporting quite another. Reliance was placed also on the appellant's long record of good service and on the financial burden which his particular family situation places on him. Those latter circumstances were not, I think. placed before the

Commissioner for his consideration in relation to the appropriate penalty for this disciplinary offence. Reduction in rank would,

it was shown by the evidence, involve a very substantial financial

loss.

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It is plain on the evidence that the appellant had nothing to gain by his breach of discipline except the gratification of the wishes of a man yho was both his superior and his friend. He risked tarnishing his good reputation in the Australian Federal Folice if anything were to go wrong. In the

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result he has suffered a substantial diminution of his reputation. His breach of discipline proceeded from a gross error of judgment, but from nothing worse, as I find. In all the circumstances I

consider the appropriate penalty to be that the appellant be fined