Lacey v Commissioner of Police

[1988] AFPDT 5

IN THE FEDERAL POLICE	)
) NO. FPDT 4 of 1 9 8 7 - - - - . .
DISCIPLINARY TRIBUNAL	1

SERGEANT MICHAEL CHARLES BRETT LACEY

Appellant

THE COMMISSIONER OF POLICE

Respondent

O R D E R

THE PRESIDENT	(KELLY J )
1 1 MARCH	1988

CANBERRA, A.C.T.

THE TRIBUNAL ORDERS:

1. That the appeal from the decision of the Commissioner given on 11 September 1987 whereby he dismissed the appellant from the Australian Federal Police be allowed.

2.   That the penalty of dismissal imposed by the Commissioner be set aside.

incidental to the appeal.

1. That in substitution therefor the appellant be reduced to the rank of Senior Constable with seniority equivalent to that which he would have were he appointed to that rank this day.

2. That the Commissioner pay the appellant's costs of and

IN THE FEDERAL POLICE	)
) No. FPDT 4 of 1987
DISCIPLINARY TRIBUNAL	)

SERGEANT MICHAEL CHARLES BRETT LACEY

Appellant

THE COMMISSIONER OF POLICE

Respondent

REASONS FOR DECISION	KELLY J (president)
1 1 MARCH 1988

By notification dated 13 July 1987 the Commissioner of the Australian Federal Police instituted proceedings against Michael Charles Brett Lacey under Regulation 18(l )(g) of the Australian Federal police (Discipline) Regulations (the Regulations) in respect of a disciplinary offence, the nature and particulars of which were as follows:-

"That you Michael Charles Brett LACEY a member of the Australian Federal Police, did act in a manner likely to bring discredit to the reputation of the Australian Federal Police, in that you did by minute dated 8 December 1986 to the Australian Ambassador in Jakarta, knowingly make an untrue statement, to wit, 'the money for the purchase of the vehicle was obtained in Jakarta from my wife's family in the form of a personal

loan' . "

The notification was served on Sergeant Lacey on

22 July 1987. It required him to notify the Commissioner

within 21 days after service whether he admitted the truth of the matters alleged to constitute the disciplinary offence or not.

By minute addressed to the Commissioner and dated

29 July 1987 Sergeant Lacey said:-

truth of the matters alleged to constitute	"... I wish to advise that I admit to the
the disciplinary of fence.
I further wish to state that in hindsight I
now realise my actions were likely to bring discredit to the reputation of the Australian Federal Police and express my sincere regret and apologies for those actions."
A note at the foot of that minute indicates that

Sergeant Lacey was contacted on 5 August 1987 when he requested the Commissioner to determine the matter and indicated that he would not be attending the hearing nor

would he be submitting a report in his defence.

By notice dated 5 August 1987 the Commissioner fixed the date and place of the hearing. A copy of the notice was served on Sergeant Lacey on 7 August 1987.

Following the hearing of the matter (on 25 August

1 9 8 7 ) , the Commissioner, having determined that Sergeant

Lacey was guilty of the disciplinary offence in question, gave notice, as he was required to do by Regulation 2 2 ( 3 ) of the Regulations, that he considered it might be appropriate to impose the penalty of dismissal from the Australian

Federal Police. The notice was served on 1 September 1987.

Sergeant Lacey responded to that notice by letter dated 7 September 1987 wherein he made submissions as to why that penalty should not be imposed upon him. He furnished a number of supporting documents.

Despite his submissions, the Commissioner, on 11 September 1987, imposed the penalty of dismissal on Sergeant Lacey, with effect from 16 October 1987. He has appealed to the Tribunal from that decision on the ground that the

penalty imposed was unduly severe.

Sergeant Lacey, who was born on 4 February 194 1,

joined the Department of Customs and Excise in Brisbane as a

Preventive Officer in 1965. From 1965 to 1973 he performed appropriate duties throughout Australia and in 1974 was seconded to the Papua New Guinea Customs Department as a Supervising Investigator in connection with the establishment of an Investigation Section in Papua New

Guinea. In 1976 he was promoted to Chief Inspector, Customs

Department, Port Moresby. He returned to Australia in 1 9 7 7

and took up duty in Sydney as an investigator attached to the Federal Bureau of Narcotics. He was promoted to the rank of Senior Investigator in 1978 and in 1979 was seconded to the Commonwealth/State Joint Task Force into drug trafficking.

On 1 4 November 1 9 7 9 he was appointed a Special Member of the Australian Federal Police and on 24 June 1 9 8 0 was appointed to the Australian Federal Police as a Sergeant. On 1 October 1 9 8 0 he was designated Detective. Between 14 November 1 9 7 9 and, as it would appear, 15 June

1984 , he was employed in the Drug Unit of the Eastern

Division of the Australian Federal Police. On 15 June 1984

he began duty as Police Liaison Officer with the Australian Embassy in Jakarta. He was given the rank of Acting Detective Inspector and accorded diplomatic status as a First Secretary. As the Commissioner stated in his reasons for the imposition of the penalty, Sergeant Lacey's primary role was to maintain close liaison with and establish a

enforcement agencies of the host country.

relationship of confidence between police and law

Following the commencement of an investigation into allegations concerning apparent irregularities in the importation of vehicles into Indonesia by members of the staff of the Australian Embassy there, a memorandum dated 4 ~ecember 1 9 8 6 was forwarded to Sergeant Lacey. It seems to have been sent to other members of the staff of the Embassy as well. I set out the relevant part of the text of the

"The Ambassador has instructed that you please forward to him by close of business on Monday 8th December the following documents relating to ownership of the car you have imported under diplomatic privilege:

c) evidence of arrangements for financing the purchase of the car,"

On 8 December 1986, by memorandum addressed to the Ambassador, Sergeant Lacey replied. The relevant part of the text of his reply was as follows:-

"(c)The money for the purchase of the vehicle was obtained in Jakarta from my wife's family in the form of a personal loan"

In his reasons for his decision dated 6 October

1987, the Commissioner said:-

"The offence with which Sergeant LACEY was charged constituted a serious breach of the standard of discipline expected of members of the Force. The making of a false statement to the Ambassador constitutes a dishonest course of action which is unacceptable in a representative of the Australian Federal Police.

actions should he abuse the privileges and	Sergeant LACEY knew the consequences of his	immunities granted to members by virtue of their diplomatic status. Sergeant LACEY's awareness of the consequences is highlighted in his interview with public service investigator Mr K. COWDEN.
When Sergeant LACEY commenced negotiations to purchase a duty free vehicle he was in breach of local customs regulations, thereby leaving himself open to allegations of misconduct. By having illegal dealings with, and obtaining finance from, Indonesian nationals
he could have been subjected to pressure and/or compromise. This situation could have had security implications.
Both society and I, as Commissioner, demand of AFP members adherence to the highest standards of ethical behaviour and probity. Sergeant LACEY's behaviour in this incident falls far short of those standards. His statement leading to the charge is a blatant act of dishonesty. In my view there is no place within the AFP for a member who fails to attain or maintain the required standards, and there is certainly no place for a dishonest member. By his actions he not only sullied the reputation of the AFP abroad, but also contributed to causing embarrassment to the Australian Government.
When members are selected for overseas duty they represent not only the AFP but the Australian Government. I expect their conduct to be beyond reproach."

The background to the offence is to be found in the policy adopted by the Indonesian Department of Foreign Affairs in connection with the import and sale of what were described as "luxurious motor vehicles". That policy, so far as I need consider it, appears sufficiently in paragraph 5 of a circular dated 1 1 October 1985 and circulated by that Department to all Foreign Missions in Indonesia. The paragraph states:-

"a. The sale of imported motor vehicles owned by Heads of Missions or by members of diplomatic staff is permitted only after the motor vehicle concerned has been owned for at least 2 (two) years.

b.

If it has been owned for less than 2 (two) years, its sale can be considered if the following conditions are met:

1)	its owner is leaving Indonesia for official reasons or due to ill health, and
2)	the motor vehicle imported by the person concerned arrived in Indonesia at the latest 6 (six) m~nths after the

arrival of its owner in Indonesia to

commence duty.

c. Thus if the said motor vehicle arrived in Indonesia more than 6 (six) months after the arrival of its owner in Indonesia, and its owner is going to leave Indonesia whereas the motor vehicle has not been owned for at least 2 (two) years, then the motor vehicle concerned is not permitted to undergo change of ownership or be sold in Indonesia. Therefore, the said motor vehicle must be re-exported overseas, except if it undergoes change of ownership to a fellow member of the diplomatic staff who has not yet used his/her right of import. In the latter case, the receiver or purchaser is considered to have used his/her right of import and therefore will not subsequently be permitted to import a motor' vehicle."

Early in December 1986 the Ambassador received an anonymous letter in which it was alleged that two motor vehicles brought into Indonesia (presumably by Australian Embassy staff) had had their engine details falsely described in the importation papers. A check showed the facts alleged in the letter to be correct. The Ambassador asked that somebody should be sent from Canberra to carry out a further investigation to see whether any other (scil. irregular) things had been happening in respect of the

officer of the Department of Foreign Affairs, was sent to	importation of motor vehicles. Mr Kenneth Cowden, an
Indonesia on 14 December 1986. Having looked at relevant files and interviewed 19 persons in the Embassy at Jakarta who had imported motor vehicles, he reached the conclusion that there appeared to have been quite widespread breaches of the appropriate regulations relating to the importation or sale of such vehicles.
Mr Cowden, interviewed by ~etective Station Sergeant Car1 Law on 27 January 1987, described what had

"Indonesian Regulations stipulate that a person may bring, a person with Diplomatic Privilege, may import one duty free vehicle once in a posting. This vehicle must be owned two years, or if the vehicle has been imported within six months of the officer's arrival in Indonesia, it may be sold on the officer's departure. Approval must be sought from Indonesian authorities. In practice it seems that any person can bring a vehicle in, in the first six months of his posting and then sell it on departure eighteen months later. What was happening in Indonesia? Well Indonesian Regulations also stipulate that motor vehicles must be under the value of sixteen thousand U.S. dollars. They can't be luxury vehicles, the S class Mercedes, and they also can't be sports vehicles. What was happening in Indonesia was that people were bringing in motor vehicles and then selling them quickly to local businessmen. This period, they'd hold the vehicle say two or three, up to six months and then they would sell the vehicle. Other persons who didn't have the finance to buy their own vehicle, would arrange for a local businessman to import the vehicle on their behalf. This businessman would put up all the finance. Legally brought in on an Embassy Officer's name, and again the Officer would keep the vehicle two, three, four months, and then pass it over [to] the Indonesian businessman, and the Officer paid a premium, this premium being in the range of 20,000 U.S. dollars."

As the interview with Station Sergeant Law

continued in question and answer form Mr Cowden described
his inquiries and their results as follows:-

"There are 33 people on the Embassy staff who imported vehicles, and I checked through the importation papers in respect of these 33 people, I found that 12 people had already illegally, in my way of thinking, sold their vehicles. Another 15 officers had imported, or were in the process of importing motor vehicles, using what I suspect to be suspect invoices. I interviewed 19 people, a cross section of all the Departments represented at the post to get a picture of what was going on there, and I found the people told me that they, yes, they had arranged to finance through Indonesian businessman, and they had brought vehicles in on the understanding that they would sell them pretty quick and make a profit, they apparently were, knowingly breaking the rules.

Q.	When you say they were apparently knowingly breaking the rules, can you enlarge upon that?
A.	There's Embassy practice that all new arrivals are given a briefing by the First Secretary, Administration. This briefing covers all aspects of life in Jakarta, or in Indonesia, and also covers procedures to be followed in regard to importation for a motor vehicle. I have checked this out with the Administration, they are fairly certain that all officers were interviewed. (Emphasis added)
Q.	Right, can you tell me what the procedures [were] to import a vehicle?
A.	When you want to import a motor vehicle you have to obtain an invoice. This invoice is then submitted to the Foreign Ministry, the Foreign Ministry then write back and say yes it's okay to import that vehicle, theoretically at that stage they will check to make sure it's not one of the luxury vehicles which are prohibited, or it's over the 16,000 U.S. dollar limit, which preclude its importation.
Once you receive this okay from the Foreign Ministry then you go ahead and

have the agent ship the vehicle. It comes in and it's cleared into your name.

Q.	You said that the staff were disposing of the vehicle locally before the two years had elapsed, can you tell me how that might've been done?
A.	These Indonesian businessmen would approach any new arrival at the Embassy I understand, first of all to assist them in buying a car, or if the person had made his own arrangements to import a motor vehicle they would approach him and say listen do you want to sell that vehicle, you can get a very good price. They were fairly constant in their approaches to these people. Eventually a deal would be struck, this businessman would arrange the initial paperwork, that is to get approval from one of two firms appointed by the Indonesian Government to purchase vehicles from foreigners, this man would obtain the necessary paperwork, which is a stamp from one of these two firms, the paper would be given back to the Embassy, the Embassy would then hold these papers until such shortly before that officer's departure from Indonesia, then they would submit them to Foreign Ministry who would then stamp them and approve them, they come back and it was all legal. However, of course, between the sale of the vehicle and the final submission of the papers, there's six months, nine months, a year, eighteen months, in some instances.
Q.	So what you're saying in fact the vehicle was disposed of and the paperwork put through to Indonesian Foreign Affairs at a later date?
A.	That's right, the paper was held in the Embassy until such time as the officer's departing the country, then it would be put through in the normal manner.
Q.	your interviews with the people involved, your cross section, about 19 people, did those people admit that they knew that they were breaching the
Indonesian Regulations?
A.	Generally yes, generally yes the people knew, some people claimed innocence but very rare, they knew what the rules were outside the Embassy.
Q.	You've also said that there was an upper limit of 16,000 U.S. Dollars in relation [to] the import of vehicles. It would appear from the papers I've looked through that some of the vehicles that were imported were in fact, apparently should've been a higher price than the 16,000 dollars. Can you tell my about that?
A.	Yes, that's one of the problems that, with the fluctuation between the U.S. dollar and deutschmarks, at one stage it was 3 deutschmarks to 1 U.S. dollar, which would give you an upper limit of 48,000 deutschmarks, however now the deutschmark is equivalent, I think somewhere about 1.8 deutschmarks to a U.S. dollar, so the Indonesians had a verbal sliding scale, but for people to bring vehicles in, they would virtually ask the Foreign Ministry is this acceptable, and the Foreign Ministry virtually had said that up to about 40, 45,000 deutschmarks they would accept. There's nothing written on this. Some of the vehicles however, were coming in at a higher rate and it appears that these Indonesian businessmen who were buying the vehicles on behalf of some of our officers, were arranging the firms in Singapore or Hong Kong to supply invoices which were under the true market value of that vehicle. Some vehicles were ridiculously low, 25,000 Singapore dollars for a 230 Mercedes. In other incidents [we] found that these businessmen had arranged that the engine and chassis numbers of some vehicles ... be change[d], so the vehicle which was described on the importation papers as a Mercedes 230E, was subsequently found to be a Mercedes 300E which is a banned category to import anyway."
Q.	When the Indonesian businessmen imported a vehicle, or arranged the importation on behalf of a staff member, an Australian
Embassy staff member, what sort of agreement was made between the two

parties?

A. I understand all times it was a verbal

agreement, there was nothing exchanged, nothing in writing. One person mentioned he actually had a loan in which he received documents for his file, I'm not sure whether he was covering up his, the free gift he was given but it always was a verbal agreement.

Q.	And did the people that had this, the finance through the local businessman, were any payments made off of the loan, by the staff member?
A.	Not that I'm aware of no. It was usually 100 percent loan, the man . would be everything, pay all the importation, the shipping documents, the Australian officer would pay no, would make no payments at all, not even as far as insurance, the local businessman even managed the insurance of the vehicle. Well ostensibly he arranged the insurance. I found a few times later on that he hadn't bothered with insurance, so our people were really driving uninsured vehicles.
Q.	And when the vehicle was disposed of the Australian based officer received an amount of money from the businessman?

A. From the businessman, yes.

Q. Direct?

A. usually, in most cases direct, couple, in some incidents I found where one of the Australian officers received a payout from that man, paid onto the other officer."

During the course of his investigation, Mr Cowden
interviewed Sergeant Lacey on 17 December 1986. Notes of

the interview were taken but first Sergeant Lacey advised that he wished to retract the untrue statement which he had

of the untrue statement assumes some importance in the case	earlier made to the Ambassador. This immediate retraction
because there is nothing in the evidence before me to suggest that Sergeant Lacey attempted to persist with the falsehood in any way.
Asked how he arranged the purchase of his vehicle, a BMW which was classified as a "luxurious vehicle", he said that he went to see Mrs Harriati [an Indonesian employee of
the Embassy] who said she could arrange ordering and all necessary paper work. She said that she could arrange all the financing and all payments for the vehicle. It was loosely agreed between Mrs Harriati and Sergeant Lacey that after six months or so the vehicle would be sold and on resale he would receive a sum of $US20,000. He had earlier told Mrs Harriati that he wanted a Mercedes Benz 230E but because Mrs Harriati advised that there would be a considerable delay in delivery he changed his instructions to her and ordered instead a BMW3251. Sergeant Lacey denied awareness of the regulations concerning import and resale of motor vehicles and stated that he had not received a briefing from the Embassy administration on his arrival in Jakarta. He also advised Mr Cowden that as he had become fully aware of the ramifications of the deal into which he had got himself he would be prepared to take over the financing of the vehicle himself and to comply with the appropriate regulations even to the extent of re-exporting the vehicle which would mean a considerable loss to him.
When acknowledging the falsehood of his statement Sergeant Lacey said that he realised that he had been to the Ambassador concerning the financing of the vehicle,
foolish to give incorrect information and wished to clear the air. He added that the mess into which he had got himself was of particular concern to him as if it were reported to his head office it would no doubt cost him his job. The gravity of what he had done was therefore clearly apparent to him.
Mr Cowden gave evidence. He was asked what decisions he had made in respect of disciplinary or other procedures concerning personnel attached to the Embassy who were members of the Australian Public Service. He said that he had decided that 1 1 persons should be charged under the Public Service Act and that a further 14 should be counselled. Of the 1 1 who were charged, he described three as senior personnel, administrators at the Embassy, who should have stopped what was happening. Those three were reduced in ranking, one by two grades from a Clerk Class 8 to a Clerk Class 6 and two by one grade, one from a Clerk Class 1 1 to a Clerk Class 10, the other from a Clerk Class 6 to a Clerk Class 5.
All the other eight had imported and sold motor vehicles in Indonesia in contravention of Indonesian regulations. Mr Cowden accepted that they were "old hands at foreign postings and ought to have known much better". Seven of those eight were fined $1,000, $500 on each of two counts, and one was counselled.
Of the fourteen who were counselled and not charged, it appears that a notification that they had been counselled was to be attached to their records for a period
of two years.
The three officers who were reduced in ranking were removed from the post immediately while the others were permitted to remain.
Mr Cowden agreed that Sergeant Lacey had told him that he had not seen the memorandum from the Indonesian Foreign Office referred to above. The document, of course, was brought into existence after he had taken up his duties at the Embassy.
Mr Cowden gave evidence that he interviewed others who were not officers of the Australian Government Service. Two were field officers in the Australian Army and, as far as he knew, disciplinary action had been taken against them. He had commented, as a result of his investigation, that had Sergeant Lacey been covered by his authorisation he would have counselled him. He also said that had his authorisation covered the three ~efence Force personnel he would have counselled two and charged the third.
In cross-examination by counsel appearing for the Commissioner, Mr Cowden was asked whether Sergeant Lacey had said to him after his interview that the original statement he had made to the Ambassador in his minute of 8 December was incorrect. He agreed that that was so. He was then asked how long after his initial interview had Sergeant Lacey told him that and he replied that he could not remember. He also agreed that none of the other officers
given false information to the Ambassador although he was concerned had been charged with having misled or with having
,not aware whether any of those officers had in fact done so. I am satisfied that Sergeant Lacey did not attempt to repeat the lie to Mr Cowden. Whether he told Mr Cowden that had given false information to the Ambassador before, during or after the initial interview does not seem really to matter. At all times he told Mr Cowden the truth about the source of the finance used to purchase the motor vehicle in question and, as it would seem, volunteered the
information to Mr Cowden. Nor am I prepared to accept, as counsel for the Commissioner suggested in cross-examination of Sergeant Lacey, that he volunteered the information in an attempt to head off any possible disciplinary charges against him. As an experienced investigator and senior police officer, he must have appreciated that an independent investigator sent to perform the task which Mr Cowden had been bidden to do would be bound to communicate what he had
been told by Sergeant Lacey to those to whom he was required to report.
It is clear that Sergeant Lacey was involved in the irregular importation of a motor vehicle. I am not satisfied that he engaged in that importation in deliberate breach of the regulations in question. Nevertheless, he should have realised that the course which he adopted was, to say the least, inappropriate and ought not to have been pursued. His failure to realise that can, I think, only be regarded as evidence of considerable naivety.
But he was not charged with any offence relating charge was that he acted in a manner likely to bring to a breach of the appropriate import regulations. The
discredit to the reputation of the Australian Federal Police in that he told a lie to the Ambassador. It is impossible to consider that lie without giving some consideration to the background to it. It is for this reason that I have set out in considerable detail the general nature of the irregularities concerning the importation of motor vehicles
into Indonesia. I think that a lie told against that background may have to be treated much more seriously than a lie which had no background of irregularity of any kind.
Sergeant Lacey clearly appreciated, as I have remarked, the gravity of what he had done. During the course of his evidence, Sergeant Lacey was asked the following questions and gave the following answers:-

". .. when you were interviewed by Sergeant

Law, you told him in a series of questions that you were embarrassed to tell your Ambassador that you had borrowed money from sources inside Indonesia. Do you recall that? --- Yes, I do.

And why were you embarrassed to tell him that? --- Well, for borrowing money or organising finance, to me, is a personal thing and I am not in the habit of borrowing money over the years, and it was just, to me, an embarrassing situation to be in."

(He then gave evidence that his wife was an Indonesian national who was with him in

~ndonesia at the time.)

"And was there any difficulty about telling anybody in the Embassy that you were borrowing money from an Indonesian national?

--- yes. To me, it was embarrassing for it

to be knowledge to other A-based officers in the Embassy that I was borrowing money from an Indonesian person.

Why was there some embarrassment about that,	given that you were married to one? --- Well,
it was a situation where it may have got back to my parents' family.
Is there some sensitivity about your parents' family? --- Well, they are of the old traditional style of Indonesians and matters like this are kind of sensitive.
~ l l right. Well, when you first received the memorandum under the hand of Mr DOWne of 4 December 1 9 8 6 , what did you believe it to be? --- Just an inter-office type memo that was put out to collect statistics on the importation of vehicles within the Embassy.
Were you aware that there was any investigation afoot concerning the propriety of importing vehicles? --- NO, not at that t ime .
Would you have told the truth had you been aware that there was such an investigation?
--- Yes, I would have done, and, in fact I
did." He was cross-examined by counsel for the

Commissioner about those answers. He denied a suggestion that it was not a question of any potential embarrassment to his parents-in-law that led to the lie to the Ambassador. He expected his answer to the memorandum to become known to other members of the Embassy staff. His answers to the questions put concerning this matter in cross-examination were not altogether satisfactory but I am not satisfied that he was lying in response to them and I do accept that, as he swore, the embarrassment he suffered was not because in answering the Ambassador truthfully he would have revealed his position as one where he had had irregular dealings with a foreign national. It must have been perfectly obvious to Sergeant Lacey from the very first moment that he appreciated that an investigation was afoot that the truth

would come out and when that investigation began he	jettisoned the lie which he had told.
Counsel for Sergeant Lacey submitted that the purpose of the Disciplinary Regulations was not so much to discipline but to make better officers and that the extreme penalty of dismissal should not be imposed unless it was clear that the officer cannot be made better or that the protection of the public or the proper efficiency of the Police Force demanded it.

With all respect to him I cannot accept the

submission.

"The distinction between criminal and disciplinary offences, both of which are punishable, is well recognised and operates in a number of fields, including that dealing with the discipline of legal practitioners (Ex Parte ~ttorne~-~eniral - for the Commonwealth; Re A Barrister and Solicitor (1972) 20 F.L.R. 234; The Queen v. The Minister of State for the Interior (1971) 20

F.L.R. 449) ."

Scanes v. Wilson (1974) 22 F.L.R. 262 at p.265 per Fox J.

In the first of the cases just referred to Fox and
Blackburn JJ (as they then were) and Woodward J said at

"The object of disciplinary action against legal practitioners is not to exact retribution; it is to protect the public and the reputation of the profession. ... 1t falls into the class of proceeding which, in Kariapper v. Wijesinha ([l9681 A.C. 716), Sir Douglas Menzies, speaking for the Privy Council, described as ' corporate and self-respecting'. The penalty is to be

determined accordingly. "

In the second case, at pp.461-2, Fox J said:-

"There is no true dichotomy between punishment and discipline. On the contrary, the two generally go hand in hand. The

distinction which is sought to be made when the two terms are opposed is generally that
which has recently been stated by Sir Douglas
Menzies, speaking for the Privy Council in Kariapper v. Wijesinha [supra], namely that between that which is 'personal and retributive' and that which is 'corporate and

self-respecting ' . Their Lordships said :

'Speaking generally, however, their Lordships would observe that it is not readily to be assumed that disciplinary action, however much it may hurt the individual concerned, is personal and retributive rather than corporate and self-respecting.' It has long been recognized, for example, that the power

of a court to disbar or suspend a practitioner is of a disciplinary nature given for the purpose of protecting the public, and the reputation of the profession, and does not involve punishment in the ordinary sense, although, in 'another sense, the practitioner may be gravely punished."

In that case, Fox J was dealing with an application for prerogative writs of certiorari and prohibition which had been made by a Sergeant of the Australian Capital Territory Police Force.

Against the background which I have set out, I turn to consider whether the penalty appealed against was too severe. In assessing the answer to that question, I have to be careful to ensure that I do not, inadvertently or otherwise, deal with Sergeant Lacey as though he had committed some offence relating to the importation of vehicles into Indonesia. But I have, too, to consider that he was accorded the status of a First Secretary and was in fact holding acting commissioned rank in the Australian Federal Police at the time. I think more is to be expected of a senior officer than of a junior one. The penalty of dismissal may well be warranted in respect of a breach of

discipline by an officer of Sergeant Lacey's rank when it	would bear hardly and unjustly on a more junior officer.
The Commissioner insists that the members of the Australian Federal Police be men and women of integrity and that the highest standards of integrity be maintained by them. When a police officer tells a lie, it necessarily reflects discredit on the Force to which he belongs and lessens his value as a police officer because the fact that he has told a lie lessens his credibility generally. That he has told a lie must necessarily mean, if the fact be known, that his evidence in a given case may be scrutinised with particular care. Human experience being what it is, the fact that an officer has told a lie once in circumstances where it was entirely inappropriate that an untruth should be told, may mean that a tribunal of fact would be wary about accepting his evidence. That may be in many respects an unjustified course to adopt but it is a fact of life.
Undoubtedly the Commissioner was entitled to take a serious view of the offence committed by Sergeant Lacey and that view is not lightly to be set aside. At the same time it is salutary to reflect on the words of Fox J in Scanes v. Wilson (1974) 22 F.L.R. 262 at p.272, when he said :

"To answer dishonestly was very wrong, and to be deprecated. But in the circumstances what

be dangerous to impose on the police force a	they did was understandably human. It would
standard in relation to such matters which is very much higher than that observed by the community in general. The conclusion that because of the untrue statements no trust could be reposed in the appellants and no reliance could be placed on them properly to perform their duties, seems to me, with respect, to be unsound, and not based on ordinary human experience."

I turn to the material which was tendered in support of Sergeant Lacey's appeal.

During his career as a Preventive Officer in the Department of Customs and Excise he was twice commended for the part he played in apprehending smugglers. He apparently displayed efficiency, initiative and competence. In 1980 he was approached by the Papua New Guinea Public Service with a view to his taking up the position of Chief Inspector, Narcotics in that service. He has attended a number o f courses and has received favourable reports in respect of them. A resumk of drug related arrests and seizures in which he had been involved between 14 September 1981 and 18 September 1982 is impressive. On or after 18 May 1987 he was awarded a Certificate of Appreciation from the Drug Enforcement Administration of the United States Department of Justice. A letter from the Administrator, dated 18 May 1987, described the outstanding cooperation and assistance he had provided united States agents concerning international narcotics enforcement investigations which

ultimately led to arrests and seizures. The Administrator

"The manner in which you conduct liaison with our Indonesian National Police counterparts	and representatives from other nations	stationed in Jakarta truly exemplifies the
spirit of international cooperation which is essential to the worldwide battle against illicit drugs."

Writing on 16 June 1987, shortly before Sergeant Lacey completed his posting in Jakarta, a senior Indonesian Police Officer said:-

"On Behalf of the Indonesian National Police General Drs. Moch. Sanoesi is very pleased to convey his most gratitude and highly appreciation for the successfull and

excellent cooperation you have extended to the Indonesian National Police to promote the police cooperation in particularly to deal with the narcotics problems. "

In a Staff Appraisal report in 1984 he was

described as:-

"One of the most valued members of the Drug Unit. Has a wealth of experience in this field. Has definite potential beyond his substantive rank."

Assessments for promotion were highly favourable.

A number of senior police officers gave evidence

in support of Sergeant Lacey. Detective Superintendent

Phillips of the Australian Federal Police described him as a competent officer who can work without supervision, one whom he had never found to be dishonest. He agreed, of course, that integrity was essential in a police officer.

Detective Chief Inspector Schramn described him as honest, loyal, trustworthy, and a hard-working officer. He had carried out an audit of the Police Office in Jakarta and had found no cause for concern. Despite the offence with which he is charged he would still regard Sergeant Lacey as a basically honest and hard-working officer.

~etective Inspector Montford said that he was

aware that Sergeant Lacey had made an untrue statement to
the Ambassador. Nevertheless, he said:-

"I have implicit faith and trust in him. He

does not require any supervision. I look upon Sergeant Lacey as one of my trusted Sergeants ."

The materials to which I have referred and the oral evidence given are matters which must weigh heavily in Sergeant Lacey's favour. None of that oral evidence was available to the Commissioner. Had it been he might well have come to a more lenient view on penalty.

Reference to the reasons he gave seems to me to show, too, that he went beyond dealing with the importation irregularities as background to the disciplinary offence charged and took them into account in an inappropriate way in imposing the penalty he did. This appears plainly, I think, from the second and third paragraphs and the last sentence of the fourth paragraph of his reasons quoted above.

In my opinion, the Commissioner also failed to take sufficiently into account the way in which the other members of the staff of or personnel attached to the Embassy were dealt with. One cannot doubt the Commissioner's right to insist that his police officers be men and women of high integrity. But one would expect that no less a standard would have been required of those members and personnel.

When regard is had to that factor, to the way in which the	great majority, at least, of those others was dealt with and
to the passage from the judgment of Fox J in Scanes v. wilson (supra) (at p.272) quoted above, he would seem to have been inequitably treated.
In the circumstances I think that the penalty imposed was too great. In my opinion, however, a salutary penalty, not less than reduction in rank, ought to be
imposed. The question is to what rank he should be reduced. I have considered carefully whether he should be reduced to the rank of Constable First Class and, indeed, for a time, considered that that was the suitable penalty
for the offence in question. However, having reconsidered the matter at length, I am satisfied in all the circumstances that the appropriate penalty which should be inflicted upon Sergeant Lacey is that he be reduced to the
rank of Senior Constable with seniority equivalent to that which he would have had were he appointed to that rank this day.

I certify that this and the

twenty-three preceding pages
are a true copy of the Reasons
for Decision herein of his
Honour Mr. Justice Kelly,
President of the Federal Police

Disciplinary Tribunal.

w-L. P,-L!,-

Associate

Dated : 11 March 1988.