Northern Engineering Pty Ltd v Federal Commissioner of Taxation

P u b l ~ c	Servxcc - Power of suspensxon and dismissal of
offlcer.

Exercise of power of suspension of offlcer wlthout salary - Whether duty to obkcrvc thc prlnclples of natural justlcc -

audl al~cram

par*

rule

Pub1.1~ Serv~ce

Board - Excrcise of pox,-er of dlsrnlssal of

officer plcadlng gullty to crlmlr~al

offence - Vag~szrnte

not proceeding to convlctlon - cond~tlonal

discharge of

offlcer upon recogn1.zance - hllethcr offlcer found "guilty"

of the offence - Meaning of "convicted" - Appllcat1.011 of

rulcs of natural justlce by Publlc Servlce Board - R L ~ ~ L

of off'lcer to appear before Publlc Servlce Doard to make

oral subnilsslons - aildl altcram partcm rule

s.s. 55-6% Publlc Service Act 1322

IN THE SVPREbLE CCOURT OF THE

. SC 235 of 1979

AUSTRALI-4V CAPITAL TERRITORY

INO . SC 953 of 1979

TIIE qrnam

against

ROBERT IrTILJ,TAlll COl,E, JOTjN C.1SEY

TAYLOR ,

HOBEIIT JOTlX YOTJNG, AKTIIOKY

EDlilN COLES ,

Ai3T>IT2R RORJ:HT PAL>IClI,

and THE CO>DIONI$E.4LTI-T OF AUSTR.1LI.A

Ex parte	LEON.ARD ALBERT 1)JSON
ORDER

JUDGE FL1IiING ORDER :	LOCKHART J.
%THERE >LID€:	SYDNEY
DATE OF ORDER:	l3 AUGUST 1979
TJIE COURT ORDERS THZT:

1. The rule should be made absolute as to the declslon of the Board that the prosecutor shall not recelve salary -

during the perlod of hls fzrst suspens~on

(1.e. from

14 March 1978 untll 19 >lay 1978).

Otherrilse the rules

nisl should be discharged. I declare that the prosecutor

is entltlcd to be pald salary from 14 March 1978 untl.1

19 May 1978 as an offlccr of the publlc servlce being an

Overseer (~r~ntlng) Grade 2, Government Prlnllng OrTlce,

Canberra. Otherw~se

I dlsmlss the orlglnatlng suninlons

dated 1 June 1979.

2. The prosecutor to pay one half of the costs of the respondents of all the proccedlngs.

I N TIIE SUPREbm COITRT OF TIIE	No. SC *235* of 1979
NO. SC 953 of 1979

AUSTRALIAN CAPITL~L

TERllJTORY

)

On 23 February 1979 t h e Supreme Court of t he

A u s t r a l i a n

C a p r t a l

T c r r l t o r y

(connor

J . )

made

o r d e r

n i s r

f o r c e r t r o r a r l t o quash a

d e c r s l o n of

t he

Colnmonwealth

A u s t r a l r a

( " t h e

~ominonwealth") t o

dlsnl iss

Leonard

Albe r t

D ~ x o n

( " t h e

p rosecu to r " )

from

t h e

P u b l i c

S e r v ~ c e

t h e Commonwealth

Tile

o r d e r was

r e t u r n a b l e 011 9 March

1979 and

then

adjourned until i t came before me on 3 and 4 May 1979.

O n 4 May,

a f t e r hearrne; argument from counse l , and

upon

t h e

a p p l l c a t l o n of

t h e

p rosecu to r ,

made

an o r d e r n r s l

f o r

c e r t ~ o r a r r

r e t u r n a b l e

I n s t a n t e r

t o Robert

Wlllram

Colc,

John Casey Taylor and Robert John Young,

each b c i n g a

Commlssroner

t he Publ rc S e r v ~ c e

Doard

( " t h e ~ o a r d " )

t o

quash

t h e

d e c i s ~ o n

t h e Colnm~ssloncrs t o dlsinrss

t h c pro-

s e c u t o r from the l ' u b l ~ c Service of

tlic Commonweali.1i.

The

p r o c e e d ~ n g s were

adjourned

t o 28 June

1979.

I n t h e mea1ltlrne

the prosecutor took out an originating summons rcturnablc

bcfore me on 28 June 1979 joinxng the Conunonwealth, each of

the said three Commissioners and Arthur Robert Palmcr

. .

respondents. Mr. Palrner is the permanent head of the

Department of Administrative Servlces and a Chief Offrcer

as defined in S. 7 ( 1 ) of the Public Service Act 1922.

I shall refer to hlm as "the Chlef Officer."

On 28 June 1979 I resumed the hearing of the

applications to make absolutc the orders nlsi. On the same day, upon yet another application of the prosecutor, I made

a further order nlsi for certiorari, returnable instanter,

to the Chief Officer to quash his decisions to suspcnd the

prosecutor from duty notlfied to the prosecutor on 15 March

1978 and to suspend the prosccutor from duty without pay

notl.ficd to the prosecutor on 9 June, 1978.

Pb. Higgins appeared for the prosecutor. Mr.

Plurphy Q.C. and Mr. Purnell appcared for all respondcnts. By consent of each party all matters were heard together.

The prosccutor had been employed for about 20 years by thc Government Printlng Offlce as an overseer.

He was a

permanent officer in the Australian Publlc Service, Fourth

Division.

On 10 March 1978 the prosecutor was interviewed by

Commonwealth Police in relation to the alleged appropriation by him of certain materials belonging to the Co~nri~onwealth.

On 14 March 1978 the prosecutor attended wlth

othcr people at the office of the Govcrnnicnt Prlnter, 'h-.

John Thompson. The prosecutor admitted havlng commltted

the acts complained of and set out in the amended charges

before thc Canberra Court of Petty Sessions to trl~ich I

shall refer later. He requcsted that hls employment

be continued and that he not be dismissed. He was lnforlned

by Mr. Thorllpson that he would be recommending immed~ate

suspension, and disnllssal, ~f found gu1.lty as, in hls

oplnion, the prosecutor had betrayed the trust placed in hlm.

On 15 March 1978 the prosecutor was served with a

document in the follow~ng

terms:-

SUSPENSION OF OFFICER UXDER sl~cfrIox

PRIOR TO TFLE LLAYlSG OF CKUGE

WIIEEEXS there is reason to bellevc that

Leonard Albert DlXOS

Oversecr (~rlntlng)

Gradc 2, Outslde

Prlnterles, Government Prlntlng Offlce,

Canberra

belng an offlcer of the Fourth Dlvlsron

has commltted an offcnce under Sectlon

55 of the Publlc Scrvrcc Act 1922, I

hereby suspend the sald offlcer prlor to the laylng of a charge agalnst the said offlcer for such offence

DATED thls 1hth day of March 1978

At the same time the prosecutor was served wlth another document, also dated 14 March 1978, in these

"PUBLIC SERVICE ACT 1922

MOTTCE OF SUSPENSIOS UNDER SECTTOS 55

PRIOR TO LAYING OF CIL4RGC

Leonard Albert DIXON

Overseer (~rlnting)

Gradc 2, Outsldc

Prlnterles, Government Prlntlng Offlce,

Canberra

TAKE NOTICE that there is reason

to belleve that you have cornmltted an offence

under Scctlon 55 of the Publ~c

Servlce Act 1922,

and that you have bcen suspended prlor to the

laying of a charge agalnst you for such offence :

AND TAKE FURTHER SOTICE that,

subject to the approval of the Publlc Scrvlce the perlod for whlch you are under suspension.

DATED this 14th day of March 1978

(sgd.) A. R. Palmer

Chief Orflcer "

At the time of servlng the prosecutor wlth those documents, hrnold Kelth Wallclate, told hirn that a

recommendatlon for suspension from duty without pay had

been forwarded to the Publlc Scrvl ce Doard("the ~oard")

for conslderatlon, that, on the assumption that the Publlc

Servsce Board would accept the recommendatlon for suspenslon

from duty w~thout

pay, he would be entitled to engage in

outslde employment during the perl.od of suspenslon.

On 1 1 Aprll 1978 the prosecutor rece~.ved

a docul~lent

dated 29 March 1978 on the letterhead of the Australian

Government Publ~shlng

Servlcc in these terms:-

"XOTJCE OF SUSPEKSION UNDER SITCTION 55 PRIOR TO

LAYING Or CIIARGE

W ~ t h

regard to the abovemcntloned notice of

suspenslon, thc Public Servlce Board has now

ordcred under Sectlon 60 ( 4 ) of thc Publlc

Serv~ce

Act, that you shall not recelve salary

durlng the pen oc; of such suspens-ion.

You are also advlsed that the Board grants you

perml.ssion to engage in outs~de

employment, should

yoh so desire, durlng the perlod of suspenslon.

sgd.

)

[A.K.WfiICLATE)

for Dlrector

Management Services"

The prosecutor was not notlfled when or where

the Board would meet to "approve" cessation of hls salary during

the period of 111s suspension, nor was he glven any opporcun~ty

to be heard on the quest~on

whelller hls suspenslon should be

with or without payment of' salary.

On 28 April 1978 the prosecutor was summonsed to

appear at the Court of Petty Sesslons at Canberra in the

Australian Cap~tal	Territory on 1 May 1978 to answer charges
that he:-

(a) Between 10th day of September, 1977 and the

10th day or March, 1978 at Canberra dld steal

eight "Itclr" prlnt-ing plates, five OEI print lng

- plates, ten litres of electro-static solu~ion, 10.5 kerns of printlng ~ n k ,

two "3>lMGDIf printlng plates

and 1000 sheets of' A4 prllltlng paper value $153.711 belonging to the Con~monwealth. Contrary to Sectlon

71 (1) Crlmes Act 1914 (charge 8982/7S).

(b) On the 1st day of March, 1978 at Canberra did

fraudulently mlsapproprlate property, to wlt, 6000 sheets of 44 gold bond printlng paper, one prl.ntlng plate and a quantlty of ink. Value $35.00, belonelng

to the Commonwealth. Colltrary to Sect-ion 71 (1) Crimes

Act 1914 (8983/78).

( c )

On o r about t h e 9 t h day of

March 1978

Canberra d i d f r a u d ~ ~ l c n t l y

r n l s a p p r o p r ~ a t e

p r o p e r t y ,

t o w l t ,

10,000

s h e e t s

b l u e A 4 bond

p r l n t l n g

pape r ,

two

p r l n t i n g p l a t e s

and

q u a n t l t y

o r i n k ,

va lue

$176.50,

be longing t o t h e

Commonwealth.

Contrary t o S e c t l o n 71	( 1 ) Crlmes Act	1914 (charge
8984/78).

( d )

o r about t h c 6 t h day of March,

1978 a t

Canberra

d l d f r a u d u l e n t l y mj.sappropr1ate

p r o p e r t y ,

t o w l t ,

2 ,500

s h e e t s of

A 4 bond

p r l n t l n g paper ,

2,500

s h e e t s of

64 bank

p r i n t l n g paper ,

t h r e e

p r l n t l n g p l a t e s

and

q u a n t l t y

i n k ,

va lue

$66.02

belonging

t o t h e Commonwealth.

Contrary t o Sec t lon

71 ( 1 ) Cr~rnes Act

1914 (charge 8985/78).

On 31 May 1978 t h e charges were amended a s

fo l lows :

(a)

Chargc

nun~ber 8982 by

d e l e t l n g

' l E l e c t r o s t a t ~ c

solution"

and

l n s e r t l n g

"b lanke t

s o l v e n t "

and

changlng t h e va lue

t h e p r o p e r t y t o $162.50.

( b )

Charge number 8983 by changlng tllc vahe o r t h e

p r o p e r t y

t o

$56.02.

( c )

Charge number 8984 by changing t h e va lue of

t h e

p r o p c r t y

t o

$67.43.

( d )

Charge n~unber 8985 by changlng t h e va lue

t h e

p r o p e r t y

t o $28.43.

>lay 1978 t h e p r o s e c u t o r pleaded

g u i l t y t o

t he charges as amended b e f o r e Mr.

Dainer S.M.

whose remarks

sen tence

inc ludcd

t h e fol lowing:-

"The

f a c t s of

t h e

m a t t e r

a r e s e r i o u s

1.n

t h e

sense

t h a t

t h e

defcndant

w a s

i n f a c t

t r u s t e d

erriployee

of t h e Commonwealth and t o some

e x t e n t

I suppose breached

thaL

t r u s t by u s i n g Coni~nonwealth

m a t e r ~ a l

t h a t i s t h e s t a r t ~ n g

preniise,

and t h a t i s

on t h e debiL conccmed.

s i d c of

t h e

l e d g e r so f a r a s he

i s

the cred1.t

s r d e i s t h e f a c t t h a t he

i s a m a n of

undsubted

good

c h a r a c t e r ,

111 f a c t t h e r e

a r c what I might term glowing Lestimonials t o h i s

good c h a r a c t e r t o cornmunlty activities, through the Lions Club i n

and

h i s

i n d u s t r y

and

h i s

a p p l l c a t l o n

p a r t i c u l a r .

Those

t e s t i m o n i a l s

a r e

i n t h e

f r l e and

thcy

c e r t a i n l y r e f l e c t

o t h e r

c l t r z e n s l

views

o r

t h e

de fendan t ' s

c h a r a c t e r

and

t h a t

c h a r a c t e r

i s of

t h e

h i g h e s t o rde r .

Also on the evidcnce of Sgt Fox 11c

co-operated

q u i t e

e x t e n s i v e l y

w i t h

t h e

p o l r c e

and

Sgi; Fox would have been

s a l d i f

t h a t had n o t occurred t h e m taslc

consrderab ly more

d i f f i c u l t and

perhaps

t he

f u l l e x t e n t

o r

t he

de fendan t ' s

a c t i v i t i e s

would n o t have come

t o l i g h t so r e a d i l y .

t h a t

i s on t h e p e n a l t y i s conccmed,

c r e d i t

s i d e of

t h e

l edge r .

f a r a s

i t seems

t h e defendant

has

a l r e a d y been

p e n a l i s e d

t o some

financial

e x t e n t .

was silspellded wi thout pay on 14 >larch and has been

i n t h a t

s t a t u s e v e r s r n c e ,

t h a t

i s a per1 od

some

10 weeksh-lllch r e p r e s e n t s

s a l a r y l o s s of

over

$1000.

True i t i s t h a t he has been a b l e accord ing

t o h i s counse l , M r .

Higgins ,

t o g e t some

sporadrc

par t - t lme

work,

b u t I would

lmaginc

t h a t t h a t h-ould

n o t b r i n g him whlch he uas then enjoying.

anywhere

n e a r

t h e

l e v e l of

s a l a r y

So he has a l r e a d y been

f l n a n c l a l l y pena l i s ed .

1:n

a d d i t r o n

t o

zha t

i t

would

seem t o me

t h a t i f I have a s se s sed h ~ s

c h a r a c t e r

c o r r e c t l y on

t h e

evidence b e f o r e me

has been

p e n a l i s e d i n a menta:

way,

a psychological

way,

havlng t h i s suspens ion i n f l i c t e d on him

and having

t h e s e

charges b roush t

and b e i n g i n cou r t

Lhese

charges .

A l l those

Lhlngs

i n m y view

r e p r e s e n t

p e n a l t y t o anyonc who

ihinlcs sbour h l s l ~ E c

g e n e r a l l y .

If I Impose a p e n a l t y which invo lves imprrsonment, which i s open t o me,

1t would seem t h a t without

q u e s t l o n he

w r l l bc

d l s ~ n i s s e d

and

t h a t wr11 r c s u l t

I n

a ve ry s u b s t a n t i a l f i r ( h e r rrloileiary

pena l by.

impose a f i n e 1 t woulrl seern, on my

exper icnce o r

m a t t e r s of

tl11.s

n a t u r e where

a Commonwealth

employer

is charged with offcnccs agalnst the Co~r~monwealth.

it is extremely llkely that he wrll be dismissed.

Whilst the fine available to me is a flne of $200

on each charge, that amount would pale, I thrnk,

into insignificance compared to the monetary loss

which the defendant would suffer by losing benefxts

whlch otherwise would accrue to him. In addition to

that it would seem to mc to bc vcry dlfflcult for

hini to obtain a sunllar job, havlng been dismissed

frorlr a Cornrnonwealth post of employment. So that woilld

represent a consequential pcnalty which 1 thll~k I

must introduce into nly problem now; I must Lake

that lnto account. Jf I impose a flne of whatever

size it would seem that that would be the natural

conscquence, that the def enddns would be dlsmlssed.

Balancing out the rcquirement to discourage others

from using Commonwealtl~

material, the old foreign

order approach seems to bc fairly prevalcnt in the

Commonwealth. In this particular cage that is &-hat

the defendant was dolng; hc was engaged on a forclgn

order, noL of very great magnltudc, a fairly low level

siLuation. But that IS what hc was dolng, and onc

of the reasons for punishment is to dctcr other people

from doing tllc sarrie thrng. But balanc3.ng out the

requirement to do that against the many factors which

are in favour of the defendant, his good character

and his CO-operation wlth she police and so forth, I

think I would be j~St1.fied in notproceed~ng

to a

conviction in the circumstances of the matter. Isllat

the defendant was doing on the evenlng in questlon was

quite wrong and he no doubt understands that, and did

understand xt at the tlme. IIe ~111

havc to pay for

the mater~als whlch he took fronl the Commonwealth

wlthout the Commonwealth's permlsslon. There will be

no question about that. But I propose, in vlew of

his character, anteccdents and age and the

circumstances surrounding Lhis matter to procccd

under section l9B of the Conlmonwealth Crxmes Act.

I find the offence proved but in vlew of the matters

which I have just outllned I flnd ii ~nexpedrent

procecd to a convicLion and I discharge the dcfendant

conditionally upon his entering lnto a recognizance,

behaviour for a perlod of 12 months from this date.

He is to pay the sum of $314.38 cornpensatlon to the

his own surety, 3.n thc sum of $100 to be of good pay. That is on the first charge. In rclatlon

to the othcr charge thcre ~ 111

be a s~lnllar

release

without thc order for corl~pensatlon."

On 9 June 1978 Mr. Walklatc scrved the prosecutor with a clocu~iient dated l9 ?lay 1978 in the following terms:-

"PUBLIC SE17VTCli: ACT 1922

SUSPESSION OF OFFICER USDER SECTTON 62

Leonard

Albe r t

D l X O N

Overseer ( ~ r l n t l n ~ )

Grade

2 ,

Outsrde

P r x n t e r l e s ,

Government

P r l n t l n g O f f i c e ,

Canberra

having been chargcd on o r about t he twontyeighth

day of A p r l l 1978,

1n the Court of

P e t t y Sessl.ons

Canberra

w l th

t h e

comniisslon

c r i m i n a l o f f ences

namely: -

(i) t h a t you, bctwaen t h e 10 th day of September

1977 and t h e 10 th day of Narch 19'78, al- Canberra

d i d s t e a l ,

e i g h t

' I t e k '

p r l n t l n g p l a t e s ,

f i v e

'OEIL

p r i n t i n g p l a t e s ,

t e n

l i t r e s of

E l e c t r o s L a t i c

S o l u t i o n ,

10.5

kgms

p r l n t i n g i n k ,

two

31'1

'MGD1

p r l n t i n g p l a t e s

and

1,000

s h e e t s

p r l n t i n g paper .

Value $153.44.

Relonglng t o t h e Commonwealth.

Contrary t o Sec tson 71

( 1 ) Crlmes Act

1914.

(ii) t h a t you, on t h c 1 s t day of March,

1978, a t

Canberra,

d i d

f r a u d u l e n t l y

misappropriate

p r o p e r t y ,

t o w l t ,

6 ,000

s h e e t s of

A4 Gold bond

p r i n t i n g paper ,

one

p r l n t i n g p l a t e and

q u a n t l t y of

i nk .

Valuc

$95.00,

be longing t o t he Commonk~ealth.

Contrary t o

S e c t i o n 71

( 1 )

Cr l~nes Act

1914.

( ~ i i )

t h a t you,

on o r about t h e 9 t h day of

>larch

1978,

a t Canberra,

d i d f r a u d u l e n t l y

rnlsappropr ia te

p r o p e r t y ,

t o wit,

10,000 s h e e t s of

b lue

A h bond

p r i n t l n g pape r ,

two

p r i n t i n g p l a t e s

and

q u a n t i t y

I n k , va lue

$176.50,

b e l o n g ~ n g

t o t h c

Commonwealth.

Cont ra ry t o Sect lol l 71

( 1 ) Crlrnes Act

1914.

1978, I

(IV) t h a t you, t o w i t , 2,500 s h e e t s of

on o r about t h e 6 t h day of March

a t

Canberra,

d l d

f r a u d u l e n t l y

~ n r s a p p r o p r i a t e

p r o p e r t y ,

A 4 Bond prLnLlng paper ,

2,500

s h e e t s of

A 4 Dank

p r i n t l n g pape r ,

t h r e e

printing

p l a t c s

and

q u a n t i t y of

i n k ,

va lue

$66.02,

be longing

t o

t h e

Commonwealth.

Contrary

t o Sec t ion

71 ( 1 ) Crlmes Act 1914.	t
L
I HERC13Y SUSPEND hlm pursuant t o Sec t lon 62 of t h e

P u b l ~ c

Se rv i ce Act,

1922.

DATED t h i s Nlnc teen th day of >lay 1978

(s,yd.)

A . R.

Palmer

Clllef

O f f i c e r "

. / l 0

At the same timc Mr. Walklate served the

prosecutor wxth a document dated 19 May 1978 in these

terms :-

SERVICE ACT 192%

NOTICE OF SUSPEKSION UNDER SECTIOB 62

Leonard Albert DIXON

Overseer (~rlntlng)

Grade 2, Outsl.de

Prlnterles, Government Printlng

Office, Canberra

TAlW NOTICE Lhat, as you have bcen charged

on or about the twentyeighth day of Aprll 1978, at the Court of Petty Sesslons at Canbcrra wlth

the commission of crlm~nal

offences, a copy of ~ d ~ l c h

charge is annexcd hereto, you have been suspended

pursuant to sectlon 62 of the Publlc Servlce .let

1922, and payment of your salary wlll cease durlng

suspenslon.

DA'l'ED this Nineteenth day of May 1978

At the timc Mr. Wallclate served thcsc docu~nents

upon the prosecutor he told 111m that it is normal practi-cc

to suspend an officer under S. 62 of the Publlc Serv~.ce &

1922 after that off~cer had been charged wlth a crlrn~nal

offence .

The prosecutor recelved a lettcr dated 8 June

1978 in the follow~ng "Suspension of Offlcer under Section 62

terms:-

P.S. act

On 15.3.78, you wcre suspended frorn duty under

Sect~on

55 of the Pttbl~c Scrvlce Act prlor to

the laying of charges. Following the laylng of

charges, yoii have now been suspended under Sect3011

62 of the Publlc Servlce Act. Orlglnals of thc

suspension and

n o t ~ c e

of suspenslon together w ~ t h

copy of Sectlon 62 of the Publlc Scrvlce .let are

attached.

The chargcs detalled in the suspcnslon undcr

Section 6 2 of the Publlc Servlce Act were heard

in the Court of Petty Sessions on 31.j.78 and

the Deputy Clcrk of the Court of Petty Sesslons

has advised that you pleaded gu~liy

to these charges

and Magistrate Dainer, witho1.1t proceeding to

convlctlon, dlscharecd you condit~onally

on your

enterlng lnto a recognisance self An Lhe s12m of

one hundredcbllars to be of good behaviour for a

period of twclve months from 31.5.78 and furthcr to

pay compensation in the sum of 8314.38 - 28 days to

pay.

Ordinaril.y, in relation to the type of offences

with w111ch you have been charged, WC would contemplate

recommending to the Doard a punishment of dismissal

from the Servlce.

To assist the Department in nlalcing a recomrncndation

as to any actlon that nnght be taken under Section 62,

and to assist thc Doard in considering such

recomo~cndat~on, you may, if you so deslre, tender

in writing, wlrhin seven days, any explanation or

comment that you wlsh to be taken into account,

such cxplanatio~l

or comment wlll be treated on an

'in confidence' basis.

sgd.) P. Kestavay

h'X SYAltr-AY )

Assistant Secretaz"

On 14 June 1978 the prosecutor replled to the

letter of 8 June 1978 in these terms:-

"FCE:

LEONARD ALBEIZ'r DISON

I aclcnowledge receipt of your letter or 8 June,

1978. I note also that wllllst I was notified

that I was suspcnded under S. 55 P.S.A. no

charges were laid against me under that Act

although they could have been.

1 would, however,

then have had a rlght of appeal in respect of any

penalty.

No such right exlsts, I am advised,

under S. 62.

Further, 1 was not given the right to be hcard

in rcspcct oT that declslon or, morc ~.mportantly

to me, the declsron that I be suspended wlthout

pay. T113.s has meant and wi l1 now continue to mean flnanclal hardshlp to me and my famlly.

I also note that I was not notlfied untll 9

June, 1978 of elther my suspension under S.

62 of the Act or that it was wlthout pay. Tt

follows that as these decisrons purport to have

bccn made on 19 Nay, 1978 1 xas glvcn no

opportunlty to be heard ~ln

rcspect of elther

of these decisions nor to advise the Court of

thcm.

Your invltat~on to put subnl~sslons in respect of your recommendation concernirle what actlon 1s to be taken by the Board is accepted by me therefore wlth gratitude. I also request

that I bc gxven the same opportunlty to put

submissions concerning thrs matter to the

Board.

The declsion to be made rs, as I am sure you appreciate most vltal to me and my famlly. Ir

I am dislnissed rather than pun~shed by some

less drastlc course of actlon belng taken I

will not only lose my livelihood for the prescnt

tlme but also I fear that I wxll, in the

circumstances, flnd it exceedingly difficulty

to find alternative employment.

I am in the difficult sltuatl.on of course that

I do not know if any matcrlal has been put to

you other than the matters leadlng to the charges

agalnst me whxch nnght be agalnst my inLerestS.

If there is any such materlal I would appreclaie

the opportunlty to comment on it. I kvould, lf

possible, llke to make oral submissions through

my counsel generally to you and to the Board.

The follow~ng

statement and attach~ncnts are

submitted in relatlon to the matters whlch

you have raised.

Firstly, I wish to express nly slncere regret that 1 toolc the actlons for which I was charged

in the Court or Petty Sessions, and to state

unequxvocally that if I am glrren the opportunrt'y

to rcturn to my former duties I would mosL

certainly not engage in any such actrvltles agaln.

I reallse that what I dld was qulte wrong, though

at the timc I dlcl not properly consldcr the

lmpllcatlons of what I was dolng.

In regard to the use of the 10,000 sheets of

'Old Gold' bond paper and thc 10,000 sheets

of 'blue bond1 1 took these vith the full

intent~on

at tile t1111e of replacing thcm the

following week.

J had trlcd but been unable

to purchase

t h ~ s

paper from a prlvate printer,

111 tln~e to con~plete

the work whlch I had under-

taken to do for the Y.M.C.A.,

on a personal

basls, by Saturday 1 1 March, 1978.

It had bccn

my intent~on	to do this work on iny arm machlne
at home.

I am sure that you are aware that I have always

becn a consclent1ous worker ln the Department,

- rnaklne a polnt of complet~ng

any work asslgned

to mc as quickly and efflclently as posslble.

As you lcnow I have been in the Government Prlnt~ng

Offlce for over 20 years and have never prevlously

been charged w ~ L h

any offence under the Publlc

Servlce Act or otherw~se.

You wlll probably, from my worlc record, be aware of occasions when I have comr lnto the Office to ensure that work was completed zt tunes when I have been on recreat~on leave. Also, T have taken very llttle sick leave over the years, prcferrlng to come to work if at all posslble.

I have prevlously forwarded coples of tcstlmonles

from Mr. lu'. Welr, Deputy Assistant Governor of

the Lions Club and Mr. Ftose of thc Lions Club

of Canberra. However, for completcncss I

attach these, together w ~ t h another testimony

from a nclghbour and long standlng friend Mr.

Jack Lette.

Also attached is a copy of the transcript of

the court proceed~ngs

on 31 Hay, 1978. I rcfer

in particular to tlle reasons for thc decislon

glven by HIS Worshlp Mr. Dalner by wl~lch

ordered that no conv~ctlon

be recorded agalnst

me and drew attention to ihe considerable

financial loss wlnch I have already suffcl-ed in

addition to tlle psycholog~cal

stress whlch I

have bccn under slnce I was charged by the pol~ce.

I draw attention particularly to Mr. Dalner 'S

comment that if he lrliposcd upon me a penalty

involving 1 n~prlsonmenl or a flne, from 111s

experlencc, it would be vcry llkely that I would

be dlsmlssed. You w ~ l l note that thls is slg-

nlflcant in vlew of hls declsion not to rccord

a convlctlon agalnsl me and not to imposc a flne.

M r .

Dalner wcnt on t o s a y -

"Balancing out t h e requirement

t o d lacouragc

o t h e r s

from

u s i n g

Commonwealth

m a t e r ~ a l ,

t h e o1.d

f o r c l g n o r d e r approach seenis

t o be

f a i r l y p reva l en l-

l n t h e

Commonwealth.

I n

t h l s pa r t l . cu l a r

ca se

t h a t

3 s what

t h e

defcndant

was doing:

he was engaged on a f o r e i g n o r d e r ,

n o t

v e r y g r c a t mngnltude,

f a l r l y low

l e v e l

situation.

But that i s what he was do lng , and

one of

t h c reasons f o r punlshmcnt

i s t o d e t e r

o t h e r people from dolng t h e same

th ing .

But

balancing

out

t h e rcqulrement

t o do

t h a t a g a l n s t

t h e many

f a c t o r s whlch

a r e i n favour of

t h e

de fendan t ,

h l s good

c h a r a c t e r and

h i s

co-operat ion

w l t h

t h e

p o l ~ c e

and so f o r t h , I thlnlc I would

be justified

i n no1 proceeding t o a conv lc t lon

i n t h e

c~rcumsi -anccs

i n t h l s ma t t e r .

Iihaz

t h e

defendant was

do lng on

Lhe

evening i n q u e s t i o n

was q u i t e h-rong and he no doubL unders tands

t h a t , and d l d unders tand i t al; t h c tune .

Ile

w i l l have

t o pay

f o r t h e m a t e r i a l s which

took from t h e Commonwealth wl thout

t he

Cornmonk-ealthls permlss lon .

There w ~ l l

be no

q u e s t l o n about

t h a t .

But

I propose,

i n vlew

h l s c h a r a c t e r ,

an t eceden t s and

age

and

t h c

circurnstances

surrounding

z h l s m a t t e r

t o proceed

under s e c t l o n l9U

t h e Cornmonwcalth Crlmcs

Act.	I f l n d t h e offence proved bu t l n v l e v of

t h e m a t t c r s i t inexpedient

w l~ lch 1

have

j u s t

ou t l l l l ed

f3.11d

t o proceed t o a col lvlc t lon

and I h i s e n t e n n g l n t o a recognleance,

d l scha rgc

t h e

defendant

c o n c l l t ~ o n a l l y

upon

own

s u r c t y ,

i n t h e sum of $100.00

t o be o r good behaviour

f o r a pcrl.od of 12 months from t h l s d a t c .

11e

i s t o pay t h e sum of

$314.38 co~npensat lon

t o

t he

Commonk,ealth of Australia".

In my

submission

t h e

M a g l s t r a t c l s d e c l s l o n and

t h e r ea sons he has

g lvcn f o r i t sugges t

t h a t he

was

cndeavourlng

t o oirnlmlzc

t h e p o s s l b l l l t y

of m y be ing dlsm3ssed a s a r e s u l t of

p l e a

g u l l t y t o t he o f f ences with which

I w a s

charged.

The

c i rcunis tances of

t h e of fences I conim~tted

was f u l l y s e t ou t be fo re M r . Dalner and I w ~ l l

n o t

r e p e a t

then1 as

they a r e s e t ou t

i n t h e

transcript

herew~. th and 311

t he address t o t he

Court by my counse l , Nr. Te r ry 13lgglns.

The

f a c t t h a t I was

charged and d e a l t w i th according

t o l a w should I submit be regarded a s a s u f f l c ~ e n t

punishrllent

t o nie

with

tlle l o s s I have a l r e a d y

sustained ihrough my suspenslon L-o d a t e .

Tllis

punishment

I who niight have bcen rnlnded t o commlt

s u r e w i l l a l s o d e t e r o t h e r s

s i n i i l a r

a c t s t o those whlch

1 comml t t e d .

I n a l l t he

c i rcumstances

r e s p e c t f u l l y submit

t h a t I should n o t be

drsnilssed as

an o f f i c e r

t h e P u b l i c S e r v l c e ,

and

t h a t

any punishment

you dec ide t o lmposc should be nominal.

Yours	s i n c e r c l y ,
(sgd. 1

L. A . DIXON

20 J u l y 1978 t h e Chief

O f f i c e r i n a minute

t o

t h e

s e c r e t a r y of

t he Board

recommended

t h e

d l s m l s s a l

t h e p rosecu to r .

The rninute

i s i n t h e s e tcmis:-

"Rccomrnendation

f o r l l i sm~.ssa l of

o f f l c e r

L.A

Dixon, Government

Overseer ( ~ r ~ . n t l n g )

Grade 2

P r i n t l n g OfTice,

Canberra

I . from d u t y under

Leonard Albe r t Dixon was

f o r ~ n a l l y

suspended

Sec t lon jj of

i h e Pub l l c

Service

Act on 14 March, 19'78.

The Publ lc Se rv l ce Board

i s s u e d	a	s a l a r y d e p r l v a t l o n o r d e r	on	21	March
1978.

The Chlef OEflcer , on 19 May,

1978, fo rma l ly

suspended b l r .

n lxon under

s e c t l o n 62

t he

P u b l i c

Se rv l cc Act,

t h l s

suspenslon

indicated

t h e

f o u r charges

l a l d a e a l n s t h1111 under

Section

71 ( 1 ) of t h e Crimes ,let 1914.

A copy of t he

formal

instrument

suspension i s a t t a c h e d .

The f o u r charges werc heard i n t he Court of

P e t t y Sess~ .ons a t Canberra on 31 May

1378 and

t h e

following

i s an

e x t r a c t

from b lag l s t r a t e

Dainer ' S

sulllmatlon

and

f ind ing :

"But

I propose,

i n view of h i s c h a r a c t e r

antecedenl-s and

age

i n t h e

c i rcu~i i s tanccs

sur rounding t h ~

ma t t e r

t o proceed under

s e c t i o n 19U

t h e Comlnonwealth

Crilncs

Act I f i n d Lhe offence proved buL i n vlew of t h e ma t t e r s which I have jusL o u t l l n e d

I f l n d conviction and 1 discharge the defendant

i t ~ n e x p e d i e n t

t o proceed

t o a

cond i t Iona l ly upon

h1.s

e n t e r l n g i n t o

recognizance ,

h i s own

s u r e t y ,

i n t h c sum

of $100 t o bc of good bchnvlour f o r a

p e r i o d of

12 months from Lhls d a t e .

Ile

i s t o pay

t h e sum of $314.38 con~pensat ion

t o t h e Conlmonwealth of Australia.

28 days

i s g ran ted t o pay.

That

i s on

t h c f l r s t

charge.

Tn r e l a t l o n t o t h e

o t h c r charge

t h e r e

w l l l be

s l r n i l a r r e l e a s e

k ' i t l~out

t h e

o r d e r f o r compensation".

Rclevant

docun~enta t ion as

p e r

t he

a t t a c h e d

l l s t ,

i n c l u d i n g a copy of

t h e Transcript

Proceedings

bc fo re J.J. f o r your p e r u s a l and guidance.

Dalner ,

M a g i s t r a t e ,

i s

a t t a c h e d

The comments

t h e Governmcnt

P r l n t e r i n ,ltrachrnent

i nc lude

r e f e r e n c e s

t o

a l l c g e d

e a r l i e r

transgressions

s i m i l a r t o those f o r whhlch

b I r Dlxon was

charged

i n t h e A.C.T.

Court of

P e t t y Sess lons bu t i t

i s c o n s i d e ~ d

Lhat

any

f u r t h e r a c t i o n t h a t rnlght

taken under Sec t ion 62

( 2 ) of

t he P u b l ~ c

Se rv l ce Act

must

n c c e s s n r i l y be

conf ined

t o

t h e

charges

a c t u a l l y laid

and

heard .

With t h l s reservation, documents havc been

c a r e f u l l y

reviewed

and

p a r t x c u l a r

a t t e n t i o n h a s

becn g iven t o Mag i s t r a t e D a i n e r l s sumlnxng up and conc lus ion i n which he found the charges

proved

and

c o n d ~ t i o n a l l y

d i scharged

b l r .

Dlxon

on $100 s e l f s u r e t y t o be

good behaviour

f o r 12 nlonths and t o pay $314.38 conlpensarlon

t o t h e

Commonwealth.

The

F l a g l s t r a t e ' s

d e c i s l o n

appcars

t o have

been

based

t c s t i ~ n o n i a l s

t o Mr. Dxxon's good

c h a r a c t e r ,

~ n d u s t r y ,

a p p l i c a t i o n

t o

communaty

ac th lv l t i e s

and

h l s

q u l t e

e x t e n s i v e

C O - o p e r a t ~ o n

wiLh

t h e

P o l l c e .

The

M a g i s t r a t e ' s

l en l ency

i n n o t

proceeding

t o conv ic t ion

and

r e q u l r l n g restitution

i n

r e s p e c t

on ly one

f o u r charges

i s o r course

l e g a l d e c l s l o n based

upon

f a c t s and

cvidcnce.

It does n o t recognise

the p a r t ~ c u l a r

administrative

r e s p o n s l b i l l t l e s

t h e

Department

and

t h e

S e r v i c e ;

i n t h e ma t t e r

such cor~ciucr b I r D~.xon

s t o l c Commonwealth proper t> and used Cornroonwcnl~h equipment f o r pc r sona l g a l n and has admlr ted t h l s .

It i s appropriate t o t akc f u l l account of

a l l

such

m a t t e r s

i n cons iderJ ng

d~scipl . i .nar>-

a c t i o n eg.

t h e cxl-cnt t o 1'h1

ch Mr.

nixon be t rayed

h l s p o s l t i o n

t r u s t i n r c s p e c t

work

~ l l e e a l l y

produced on Cornmon~,~ealth

premises and equiprnenl:

and the materials used for such purposc.

Conduct of this nature is not acceptable In thc terrns of Mr Dlxon's responsibilities to

A.G.P.S.

and the Publlc Service and lt is

strongly recommended that he be dismissed from

thc Commonwealth Public Servrce.

R. Palr~~er

[:dl-t!A;,\L,mR,

Chlef

Off ~ c e r "

0x1 or about 28 August 1978 the respondent Robert

John Young, a meniber of the Board, receivcd a file relating to the prosecutor, togcther with a minuLe from an offlcer of the Board, Chrlstlne Mary Coode, in the

=	following terms:-

"Mr. L.A.

D ~ x o n

- Proposed Dismissal

1. Mr. L.A. Dixon is an Overseer (prl.ntlne)

Gradc 2 in the Prlnt~ng

Branch of A.G .P.S.

He was appointed to the A.P.S. on 29 January

1958.

2. Mr. Uixon was suspcnded from duty by the

Servlces on 14 March 1978, when there werc reasons

to believe that he had comrnitted an offence under

Secti.on 55 of Lhe Act, and pcndlng thc outcome

of illvestigations by the Commonwealth Polxce.

Mr. Dlxon was.~nltlally suspcnded under Sectlon

55 (3) (a) of the Publlc Service Act, and the

Chief Officer of the Department of Adm~nlstative that he should not recelve hls salary durrng suspensloll.

3. On 28 hprll Mr. Drxon was charged with steallng

and f

raudulcnt

rnlsappropria t

1011 of Cornmollweal th

property in the Court of Petty Sessions.

Following the laying of crrmlnal chargcs, the

Cli~cf Offlcer on 19 >lay suspendcd Yr Usxon pursuant to Section 62 of the Publlc Servrce Act.

4.	On 31 Hay 1978, Magrstratc J.J. Dalner of the

Court of Pctty Sessions found the ofrenccs proven,

but found it "inexpcd~

enl; to proceed to a convlctlon" .

(folio 38). He d~scharged

Mr. Dison "condit~onal1.y

upon h1s enterlng lnto a recognizance, hls own

surety, in the sum of $100 to be of good behav~our

for a period of 12 months from this datc. He

1s to pay the sum of $314.38 compensaLlon to the

Coninlonwealth of Australra". (folio 38)

5. Mr. Hunt of Legislation and General Branch

has advlsed that such a f1ndlng by a nraglstrate,

whcre there is no procced~ng to a convxctlon,

does constitute an offlccr belng found gullty

of an offence in the terms of Sectlon 62 (2)

of the Publlc Servlce Act.

I understand there

Is an advlslng from the Attorney-General's Departlncnt to tlus effect. (See follo 83). Further actlon by rhe Department of Adm1nlstratlve

Servlces has therefore becn taken pursuant to

Sectlon 62.

6. Although there is at present no provxsion

for an offlcer to appeal against proccedlngs taken pursuant to Sectlon 62, the Dcpartment of Admlnlstrative Services on 8 June 1978

infornied bIr Dixon that a recornrnendatlon for 111s dlsnilssal was under conslderatlon, and gave hlrn

an opportunity to tender an explanatlon, or

comment (folio 37). Havlng received Mr. Dixonls

explanatlon the Chief Offlcer of thc Department

of Ad~nlnlstratlve

Servlces on 20 July 1978

recommended Yr. Dixon's dlsmlssal 1.n vlew of

hls betrayal of a posltlon of tn~st. The Regxonal

Director, Canbcrra, has revlewed thc cas and is

of the view that dls~nlssal

is warranted.

7. In view of h15 mlsapproprlatlon of Commonwealth

property, hls breach of trust as a supervisor, and 111s lnvolve~nent of subordrnates in foreign order work to hls own proflz, it is recornrnclldcd

that Mr. Drxon be dlsmlssed frorn thc Scrvlce.

8. The recornmendatlon in paragraph 7 3s made in

the light of the slgnlflcance of Xr. Dlxon's

rnlsconduct.

Polnts w l ~ l ~ l l

1nle;ht have some bearing

on the above judgement are those put forward by Mr. Dlxon in hls statement of explanation

(follos 34-36). Mr. Dixon con~men~s

the

poteilt~al

consequences of dlsm~ssal

mali~ng

it very dlrficult for hlm to flnd alternative

~employnient; expresses regreL for hls actlons

and states that hc would not engage 1.n such

i I

actlons agaln; refers to hls conscle~ltlous

work

hablts over 20 ycars and the fact ihat hc has

not previously been chargcd wlth an offence under

thc Publ~c

Servlce Act; rerers to the niaglstrate's

I I

r e f e r e n c e s

t o h l s good

c h a r a c t e r

and

t h e

f a c t

t h a t he d l d n o t procecd

t o a

conviction

p a r t l y

I n

o r d e r

t o m l n i m ~ s e

the chances of Dlxon's

d i smxssa l

( s e e a l s o fo11.o

3 7 ) ;

c la lms

t h a t

h l s bc lng d e a l t w i t h according

t o law i s a

s u f f i c l e n t pilnrshment ;

and

a t t a c h e s

coples

test lr l ionies	t o 113s	pe r sona l	c h a r a c t e r	(folios
29-32).

9. Aea lns t M r . Dlxon's explanation and t h e

tcs t l rnonles

t o h l s c h a r a c t e r

should bc

balanced

the

following

f a c t s : -

t h c

Governm~nt P r l n t c r ' s

s ta tement

t h a t

t h c

charges

l a l d a g m n s t Mr.

Dixon

r e p r e s e n t

on ly t h e "t1.p

OS an iceberg"

I n terms of

t h e

f o r e l g n o r d e r s he

had

been

producing

u t l l l z l n g

Comnionwealth

p r o p e r t y

and

s t a f f

( f o l l o s

25-27);

s ee

a l s o r o l l o s

11-12);

difficulties caused t o management over

t h e y e a r s by Mr.

Dlxon l s abuse

s e n i o r

o f r l c e r s ,

overbearing

b e l ~ a v l o u r t o h i s

s ta f f ,

and

u n c l v l l

and

a b u s ~ v e

behaviour

t o c l l e n t s e.g.

n o t l c e

dlsrl i issal

g lven

i n August

1966 f o r u s e of

f i l t h y language;

cornplalnt

l a c k of

c l v l l l t y from M r .

J .

Green,

letterpress

s e c t l o n Koveniber

1968;

complalni

Dlxon 's

v u l g a r and

abrupt

b e h a v ~ o u r

and

unreasonably

seve re p re s su re

t a c t l c s by a member

of h l s s t a f f 3 ?larch

1972;

c o n i p l a ~ n t

from

Dcpart~nent of

Business and Consumer X f f a l r s about Dlxon's

abuse and

f o u l language

J u l y

1977.

( s e e

f o l l o s

11-23)

10.

O n ba lance

i t i s consxdcred

t h a t

o t h e r

f a c t o r s do

n o t

m l t i g a t e

t h e

seriousness

Mr.

Dlxon's

offence n o r a l t e r t h e assessrncnt

t h a t

d l s l n l s s a l

i s warranted.

1 1 .

A n i n s t r u ~ w e ~ t

d l s n n s s a l

f o r your

s i g n a t u r e

Lz c

i s	a t t a c h e d .

sgd . ) C. $1.

Goode

C . M.

GOODI?)

23.8.78

Tllc f l l c con ta lncd "a b r l e f of

evidence from

t h e

Commonwealtli

l'ol1ce"

t o g e t h e r

w l th

t h e

t r a n s c r x p t

t h e

c r ln i lna l

procecdlngs

concerning

t h e

p rosecu to r

t h a t

took

p l a c e

before M r . Dalner S.M.

on 31 May 1978.

The f l l e

a l s o

inc luded

t e s t i l n o n i a l s

beha l f

t h e

p rosecu to r ,

v a r l o u s

recbmmendations

f o r dismissal

from

the

P u b l l c

Se rv i ce as

w e l l a s complal.nts,

and

r e p o r t s

the

compla in t s ,

a s t o t h e

perfornlance

t h e p rosecu to r

h l s d u t i e s and an l n s Lrulnent

dl.smissa1.

The f i l e

a l s o contal-ned t h e

l e t t e r from

t h e

p rosecu to r

da t ed

1 4

June

1378 which

I have s e t ou t e a r l i e r .

M r .

Young r cad and cons idcred t h e wllole

f l l e on

28 August 1978.

Re deposed i n hzs a f f ~ d a v l t

a s

fol lows:-

"5.-

I am aware t h a t under S. 62 ( 2 ) of t he

P u b l i c

Se rv l ce

Act

1322

t h e

r e q u l r e d

c o n d ~ t l o n

precedent

f o r d l s m l s s a l

i s

t h e

f l n d l n g of

g u l l t

upon	t h e h e a r i n g of	a	c r l m l n a l charge by	any
Court .

6 . I was informed and v c r l l y be l i eved t h a t

a s a t 28 August

1978 t h a t c o n d ~ t l o n

precedent

e x l s t e d

i n r e l a t l o n

t o my

d e l i b e r a t ~ o n s

concerning

Leonard Albe r t Dlxon.

A f t e r satisfying myself

t h a t Leonard

7.-

A lbe r t

Dlxon

was

l l a b l e f o r

d l s m l s s a l I

considered

t h e v r l Ltcn representations

Leonard

Albe r t

Dlxon

r e f e r r e d

t o i n paragraph

3 , toge t l l e r w l t h he

recommendations

a s t o why

hc should be di.srnlssed howevcr i n malclng my

d e c l s l o n 1 d l s r cga rded those m a t t e r s mcntloned

i n paragraph 9 of llnnexure "A" h e r e l n a s i n my

opin lon

t h c materral.

thc

f l l c d l d n o t

p rov lde

sufficient

evldence

t o

s u b s t a n t i a t e

those

ma t t c r s . "

The

w r l t t e n

r e p r e s e n t a t ~ o r i s of

t he

p rosecu to r ,

de sc r ibed

a s be ing

those

r e f e r r e d

t o

I n paragraph

3 ,

a r e

those contained i n t h e l e t t e r of 14 June 1978.

The

document annexurc "A"

t o Mr.

Young's affidavit i s t h e

rnlnute

from C h r i s t l n e Mary

Goode.

On o r about 23 August 1978 the respondent John

Casey Tay lo r ,

membcr

t h e Board

r e c e l v c d a

f l l e r e l a t l n g

t o t h e

prosecutor,

t o g e t h c r

w i th

t h e

s a l d niinute

from

C h r i s t i n e Mnry

Goode.

The

f l l c con ta ined

t h e

same

documents o r cop ie s thereof

a s were

inc luded i n t h e f l l e

s e n t t o and r c a d by M r .

Young.

M r .

Tay lor r ead and

cons idered t h e whole

f i l e

on 29 August 1978.

I n h i s a f f ~ d a v i t

of 30 A p r i l 1979 Mr.

Taylor

deposed

a s fol lows:-

11 5.-

Iam aware t h a t under S.

62 ( 2 ) of

t hc

Pub l l c

S e r v ~ c c

Act

1922

t h e

r e q u l r e d

c o n d ~ t l o n

precedent

f o r d i s m i s s a l

i s t h e

f l n d l n g of

g u l l t upon

t h c h e a r ~ n g

o r a

c r lmrna l charge

by any Court .

6. 1 was informed and v e r l l y be l l evcd t h a t

as a t 29 August

1978 t h a t condition precedent

e x i s t e d i n r e l a t i o n t o my

deliberations

concerning Leonard Albe r t Dixon.

7 . A f t e r satisfying mysclr t h a t Leonard

Albe r t

Dlxon

was

l l a b l e f o r d l s m l s s a l I

cons ldercd

t h e

1,-r i t ten r ep rc se r i i a t l ons

Lconard

Albe r t

Dixon

r e f c r r e d

t o

i n paragraph

3 ,

t o g e t h e r

w i t h t h e reconunlendatlons a s t o why he should be

d i s ~ n i s s c d

howevcr 1.n ri~alc~ng

rr~y d e c l s l o n

disregarded

tliose m a t t c r s mentioned

i n paragraph

g of Annesure

"At t hcreun a s i n nly

op ln lon the

m a t e r l a l

thc

F i l e d l d noL

provlde

s u f f l c l c n t

evidencc

t o

s u b s t a n t x a t e

t h o s e

ma t t c r s . "

Thc

documents r c f e r r e d

t o i n paragraph 7 .

his affidav1.t

a r e t h e same

docilments

a s \:ere

r e f e r r e d

t o by Mr.

Young i n paragraph 7 of h i s affidavit

011

o r about

Septen~ber 1978 t h c p rosecu to r

r e c e l v e d

l e t t e r d a t e d

1 Septcinber

1978

i n t h e f o l l o w l n g

"You

a r e hereby advised

t h a t fo l lowlng a

recommendation

from your

C h ~ e f O f f l c e r ,

t h e

P i l b l ~ c

Sc rv l cc Board has pursuant

t o i t s

powers under sub-sec t ion

( 2 ) of

t he P n b l l c

Se rv i ce Act ,

dlsrnlssed you

from

t h e ~ l u s t r a l l a n

Publlc Servlce wlth cffect from 29

August 1978.

Yours faxthfully,

sgd.) R. N. McLeod

R . .

MCLEOD)

Secretary"

In hls evidence, by affldavlt (hc was not

cross-examined) In these proceedings thc prosecutor said:-

"The brier circumstances of thc offences were that T used so~nc matcr~als from the

Prlnt~ng

Off~ce

to run off a prlnting job I

was

d o ~ n g

on a cost only basls for a local

char~ty. T had been going to use matcr~als

would purchase on my own rnachlnc, howcver, IIIY

suppller was out of the materlals 1 ncrded and

my mach~ne

brolce down before the run was complcl.ed.

Thus I used the Commonwealth's materlals 1.nten31nr;

to replace them and was f~nsshlng

the run on ?

Prlnting Off lcc machlnc when I was quest ioned by Polxce to whom T made a full adln~sslon of what l had done.

My Chief Officer is the Governllient Prlnter, ?fr.

John Thompson. Shortly after my being quest~oned

P o l ~ c e

and before I was charged Mr. 'L'l~olnpson

spolce to me and told me that hc would recommend that I be dlsnnssed upon my convLctlon for what

I had done. IIe dld not ask me anything about

the clrcumstances of the offence or ask for

detalls or subrnlss~on from me about tlus or lily

servi ce to thc Cornmollwealth, thc commminlty and

my family circumstances beforc announcing 111s

declslon so to recommend."

The prosecutor says that the Board, beforc

dismisslne; lilm, did not tell h1m what the rccommendat~on

of his Chief Off~ccr,

the Government Prlnter, Irlr. John

Thompson was, or thc reasons thercfor, so that he nilgllt be heard wlth rcspect thereto.

In hls affldavlt of 1 May 1979 the prosecutor

s a l d t h a t l f he had been

shown e i t h e r t h e Board

f r l e

which was

cons idercd by t h e Comrnissloncrs

o r t h e nllnute

C h r l s t l n e Mary Goode,

he would have taken t h e

opportunity

t o r e p l y A s t o paragraph 7

t h e r e t o .

of	C h r i s t i n e Mary Goode1s

minute,

t h e p r o s e c u t o r sal d

t h a t he

would

have

sought

t o adduce evidence:-

" (a ) Although I abused my

p o s r t i o n a s an employee

I d i d n o t

abuse my

p o s l t l o n a s a

supervisor

a s

t h e work

was

done

a f t e r hou r s ,

t h a t

i s a f t c r

my	d u t l e s had ceased

( b )

Thc "foreign o r d e r worlc" was f o r charity

and

p r o f l t

t o me

c o n t r a r y

t o

t he

a l l e g a t l o n

madc	t h e r e l n

( c )

involved no

"subord lna les t l I n t h a t work

i t was

done i n t h e absence o r o r h e r cmployces

and

w ~ t h o u t

t h e i r lillowledgc

c o n t r a r y

t o

t h e

a l l e g a t l on

made

there111

( d )

I n t h e r e p o r t no

acknowledgement

i s rnade

t h e f a c t t h a t t h e compensation

ordered by

t h e Court t o be pa id by me

had been p a ~ d

n o r

t h e t r u t h of

t h e s t a t emen t s rriacle

by mc

t h a t

I had over t h e work dclnanded of

t he y e a r s

c o n t r l b u t c d over

and

above

me	I n terms of bo th hours

and

occasionally

m a t c r l a l s . "

A s t o paragraph 9.

t he s a l d mlnute t h e

p r o s e c u t o r

said:-

"I would have ob jec t ed t o Board members be lng

shown

n l a t e r r a l

such a s t h a t r e f e r r e d

therein

and

t o the111 r e a d l n g i t o r r e a d l n g of

i t .

t h e Board had, nevertheless, dec lded t o r ead

i t I would have sought t o adduce cvldence of

t h c

c l r c u u s t ances

ei t l ~ c r

spur ing

o r surroulldlng

any such a l l e g a t l o n a s appropriate.

I do n o t

b c l l e v e

t h a t t h c

allegations

i n paragraph

aforesaid

were

regarded a s l r r e l c v a n t a s suggested

1.f

on ly f o r t h e reason t h a t t h e samc formed

rhe

b a s l s f o r

Lhe

recornmendat~cn made

and

pe r s l sxed

the

1)epartment

Adr i~ ln l s t r a t l ve Sesv lces

r c l c v a n t

o f i ' l c c r s

t h a t

cl~srnlsscd whlch,

wi thout

Lhose

m a t t e r s having been

taken

i n t o

account , may

w e l l have been different."

Mr. Young and Mr. Taylor were cross-exarnlned. I shall deal later wlsh thelr evidence; but shall say

now that they impressed me as wltncsses of truth whose

evldcnce was reliable.

The prosecutor challenges hls suspensions from duty without pay notlfled to hlrn on 15 March 1378 and

9 June 1978 and hls ~ I S I I ~ I S C ~ ~ from the Public Servlce

on 29 August 1978.

As to the rlrst suspcnsion, it was the act or

the Chlef Officer by instrurncnt dated 14 March 1978 and

notiflcd to the prosecutor on 15 >larch. 'J'hc Board later

ordcred pursuant to S. 60 (4) of the Publlc Servlce Act

1922

("the ~ c t " )

that the prosecutor would not rcceive

salary durlne; the perlod or suspension. Thc prosecutor

was notlfled of thls decislcn on 1 1 Aprll 1978.

The prosecutor attacks the Chief Officer's dcclslon

charge was lald agalnst the proscciltor under S. 55 of the

to suspend on two grounds. The flrst ground is that 110 to suspend hlnl.

It is necessary to set out, so far as relevant, thc lcgislatlve scheme whlch regulates thc dlscl-pllne of offlcers of the publlc servlce under the Act.

An officer (other than an offlcer in the flrst or

second dlvlsion of the publlc servlce) who engages in any of

thc conduct specifled ~n S. 55 (1) (a) to (h) of the Act,

which lncludes dlsgraccful or llllproper conduct, is gullty

of	an o f f ence and	l i a b l e t o punlsh~nent determined	under
S.	*5 5 .*

t h e

Chlef

O f f i c e r

h a s

reason

t o b e l i e v e

t h a t

an o f f l c e r has committed a mlnor o f fence he may

c a l l upon

t h e o f f i c e r f o r an exp lana t ion and

i f , on

conslderatl .on

t h e exp lana t ion ,

i s of

op in ion t h a t

t he

of fence has

been

cornmltted,

he may

c a u t i o n o r reprimand

i h e o f f i c e r

o r f3.ne hlm a sum n o t exceeding one d o l l a r :

S .

( 2 ) .

Where

t h e r e

i s r ea son

t o b e l l e v e

t h a t

o f f i c e r

( n o t b e l n g an o f f i c e r

t he

f l r s t

o r second

division)

h a s

committed

an o f f ence ,

o t h e r

than a minor

o f fence ,

t he

o f f l c e r

may

charged by

the

C h ~ e f O r f i c c r and,

i f

i t i s

cons idered

t h a t

t h e

charge

i s of

such

s e r J o u s n a t u r e

t h a t

t h e o f f l c e r

should n o t

con t inue

i n t h e performance

h l s d u t y ,

he may

suspended by

zhe

C l~ ie f O f f ~ c e r , or

i n

ca se of

emergency,

by any o t h e r o f f i c e r h a v ~ n g

power t o

l a y a charge.

The

suspension may be

e f f e c t e d p r i o r t o o r al.

t h e time of

o r subsequent t o t he l a y l n g of

t he charge ,

and

may bc removed a t any timc by t h e Chief OfE'lcer pending

d e t e n n l n a t l o n of

t he

charge

o r i n any

case wl~erc

t h e

charge

h a s n o t

been

s u s t a i n e d ,

immediately

upon

f l n d i n g t o

t h a t

e f f e c t :

( 3 ) (a ) and

( b ) .

Upon

charge be ing l a i d a g a l n s t an

o f f i c e r ,

s h a l l f o r t h w i t h be

f u r n i s h e d w l t h

copy

t he

charge

and

s h a l l be

d l r e c t e d

t o

r e p l y f o r t h v l t h i n wrlLlng

s t a t i n g

whether he

adnuts o r dcn le s

t h e

t r u t h of

t he c h a r m and

g l v i n g any

expl.analion

d e s l r e s

i n r ega rd

t h e r c t o .

reply is not niadc by the officer wlthin seven days of his

receipt of the charge, he shall be deemed to deny the

truth of the charge: S. 55 (3) (c).

If the Chief Officer, after consideratl.on of

reports relating to the offence, the charge and the reply

and explanat~on,

if any, of the offlcer chargcd and any

further reports he may consider necessary, is of opinion

that the charge has been sustained he may fine the off~cer any sum not exceeding $40.00 or reduce hls salary or reduce him to a lower dlvlsion, class or posltlon, and salary, or

transfcr 111m to some other posit~on

or local~ty,

w h ~ c h

transfer may bc in addltion to flne or reduct~on

recommend to the Board Lllc disr~l~ssal

or the offlcer from

servlce. If tllc punishment so imposed or reco~n~nended

the Chief Offlcer be other than a fine not exceeding four

dollars, or if, in the casc of an officer who has been

depr~ved

of' hls salary durlng suspension, the amount of the

fine imposed, together k73.tl1 the amount of salary of which

he has been deprived, exceeds four dollars, the officer

may appeal in the manner and tune prescribed, not belng a

time less than seven days, ngainst the declsion of the

Chief Officer and thc appeal shal.1 be hcard by an Appeal

Board: S. 55 (3) (d).

If no appeal is made by an ofrlcer against a

reco~i~~nendatlon

that he be dismissed, the Board may dismiss

the offlcer or imposc any other of the punlshmenLs to w h ~ c h

I have r e f e r r e d .

The appea l may be madc on t h e ground

Innocence

t h e chargc o r exces s lvc s e v e r l i y of

t h e

punishment;

and t h e Appeal Uoard may conf l rm, annul o r

va ry

t h e

d c c l s l o n appealed

a g a i n s t

lmposlng

any

o i h e r

punlshrnent

s p c c l f l e d above,

and

l t s d e c ~ s l o n

s h a l l be

f l n a l ,

save t h a t i n any case where

t h e Appeal Board

c o n s ~ d e r s

t h a t

t h e

o f f ' l c c r

should be

dismissed

t h e

ca sc

s h a l l be

r e f e r r e d by

t h c chalrrnan of

t hc Appeal Board

t o t h e Board

which may

d l smis s t he officer from

the s e r v l c e o r imy

lmpose

any such o t h e r punishment a s i s lnentioncd above.

I n t h e

h e a r ~ n g

any appea l against

t h e excessive

s e v e r i t y of

t h c

punishment

t h e Appeal Board

i s ob l lged t o t ake i n t o

c o n s l d e r a t l o n

t h e

p rcv lous

r eco rd

t h e

o f f l c e r :

S .

( 3 )

( e ) and

( 4 ) .

Thc Appeal Board comprises a chairnia~i who

s h a l l

have

t h e

q u a l l f i c a t ~ o n s of

S t lper id ia ry Mag i s t r a t e ,

and

o f f i c e r of

t h e Department

t o wlnch

t h e

a p p e l l a n t

belongs

a p p o ~ n t e d

t h e

Chief

O f f l c e r

and

a n o f f l c e r c l e c t e d a s

p r e s c r i b e d

and

from

t h e

o f f l c e

t h e

d i v l s l o n i n whlch

t h e a p p e l l a n t

i s lnc ludcd

i n t h e

S t a t e o r Territory

i n

which

t h e a p p e l l a n t perforrns

h l s d u t l e s .

Any

two

members

of an Appeal Board may by conscxt of

t h e p a r t l e s concerned

e x e r c j s e a l l powers

t he

board

f o r

inves t iga t - ron and

dcc i s lon :

(5).

%%ere an o f f l c e r has been suspended under S .

and t h e r e l a t i n g t o t h e of fence and

Chief

O f f i c e r ,

afLer

cons?dcraLlon of'

t he

r e p o r t s

chargc and

the r c p l y and

explanation

any,

i s of

t he o p l n ~ o n

t h a t

t h e

charcc

a g a l n s t

t h e

o f f l c c r h a s n o t

been

sustained

o r an Appeal

1.- 7

Board

f l n d s

t h a t

t h e

charge

a g a l n s t

Llle

o f f i c e r

i s n o t

proved,

t h e

Chief

O f f l c e r s h a l l forthwl. th rcmove

t h e

suspenslon:

(10 ) .

A t any meetlng of an Appeal Board where i.he

members

p r e s e n t

a r e

d ~ v i d e d

i n op in lon

t h e

q u e s t i o n

s h a l l

dec ided according

t o

Lhe

d e c i s l o n of

t h e m a j o r l t y i f

t h e r e b e

one

and,

i f

they

a r e e q u a l l y d l v l d e d ,

t he

q u e s t l o n

s h a l l be postponed t o a l a t e r meeting of	the board:	S.
55 ( 9 ~ ) .

Where

o f f l c e r of

t he

f l rs t

o r sccond

d j v l s i o n

i s charged w ~ t h

any

t he

o f f ences s p c c i f l e d i n S .

55,

t h c M i n l s t c r

i n t h e

ca se

o f f l c e r

t he

f i rs t

d l v l s i o n , and t h e permanent

head i n t h e ca se of

o f f i c e r of

t h e second division,

may

suspend the o f f ~ c e r

and, upon charge and suspens ion t o t h e Board.

such suspens lon ,

s h a l l forthwith

r e p o r t

t h c

If	t h e o f f l c e r does

n o t

i n w r i t i n g admlt

t h e

t ruLh of

t h e charge

t h c Roard

s h a l l

appoin t a Board of

I n q u l r y consisting of

t h r e c persons

and wlllch

s h a l l n o t l nc lude t h e person by whom

t h e charge

i s made,

whlch

s h a l l i n q u i r e i n t o t he

t r u t h of

t he

charge

thereon:

( 1 ) .

any of

t h e charges a r e adnil t tcd o r a r e found

by t h c Roard of

I n q u i r y t o be proved then the Board may

malce such reconlrnencatlons as t o t he punlshrneilt o r o therwise

of t h e r e c o ~ n m e n d n t l o ~ ~

person

charged

a s i t t h i n k s

f l t .

O n r e c e i v i n g

such

t h e Governor-Gencral

may

d l s m l s s the

oi'f l c c r

from the service or reduce him to a lower dlvlslon and

salary or lmpose such penalty or other punishment as thc

casc demands: S. 56 (2).

If the charges are found by the Board of Xnqulry

not to bc provcd the suspension shall be lmrnedlately removcd

by the mlnlster orpcmancnt head as the case may be: S.

56 (3).

Any offlcer, upon the hearlng by the Board of

Inquiry or dppcal Doard in relatlon to any charge agalnst him, shall be entitled to be reprcsenled by counsel,

attorney or agent who may examine ~i~tnesses

and address

the Board on hls behalf. The charglng authority has a

simllar rlght of represcntat~on: S. 5 7 (1).

It shall be the duty of the Board of Inqulry

or Appeal Board to make a thorough ulvestlgat1.on wlthout

regard to legal forms and solenlnlt~es

and to direct iiselr,

by thc best cvldence r,~hich ~t can procurc or which is

lald beforc l t , whether the evldence is such as thc law

would require or admlt in other cases or not:

S. 57 ( 2 ) .

Ir an Appeal Board is of oplnlon that thc appellant

offlcer had no reasonable grounds for appeal, and that the hearlng, and the Board may order the appellant to pay such

appeal was frivolous or vcxatlous it may recor~~mend 1.u the

Board that thc offlcer bc requlred to pay such sum as thc

sum or lesser amount as it thinlis flt, and the sun1 so

ordered shall be recoverable in the manner prescribed ~ O I -

the recovery of flnes for breaches of the Act or the

lieylations: S. 57 (3).

The Chalrrrran of any Board of Inquiry or Appeal

Board may summon person to attend, talcc evldence on oalh

and require the production or docurncnts:

S. 58 ( 1 ) .

Any offlcer who, wlthout rcasonablc cause, neglects

sworn or to answer questions or produce documents relevant

to the subject of the inspection, lnquxry or invest~gatlon,

f a ~ l s

to attend in obcd~.ence

to the sumnions or to be

shall bc guilty of an offence against the Act:

S. 58 (2).

Any person, not belng an offlcer who, after payment or tender of' reasonable expenses, neglects or fal.ls, wlthout reasonable cause, to attend in obedience to the summons, or

to be sworn, or Lo answer questions or produce documenls

relevant to thc subject of thc inspection, l.nqulry or

lnvestigatlon shall be gullty of an offence: S. 58 (3).

A person is not compellable to answer incrimlnatlng

questions: S. 58 (4).

In any case where a charge agalnst an officcr is dealt with by a Board of Inquiry or Appcal Board, a copy

of all documents intended to be used at the lnquiry shall,

where practicable, be furnished to the officer at least

seven days before the inquiry is hcld:

S. 60 ( 1 ) .

Wherc any charge against an officer is dcalt wlth by a Board of Inqulry or Appeal Board, that board shall have

thc right to direct that the inquiry bc held in publlc or

In private: S. 60 (2).

A Board of Inqulry or Appeal Board has power,

where

i t f l n d s a

charge

i s n o t proved

o r upholds

an a p p e a l ,

t o recomlnend

t h a t

t h e reasonable

expenses o r p a r t

t he reo f

l n c u r r e d by

t h e

o r f x c e r

i n meetlng

the

chargcs

o r

prosecuting t h e appeal be p a l d ,

t h e amount of such expenses

t o be mentxoned i n t h e recommendation.

If approved by t h e

Board t h e amount inay be p a ~ d

t o

t h c

o f f l c e r :

( 3 ) .

Sub-sect lon

( 4 ) of S .

60 provides:

l'hllere

an o f f l c e r has been suspended f o r

an offence under

t h e Act ,

s h a l l be

e n t l t l e d

t o

r e c c l v e

111s

s a l a r y du r ing

t h e

p e r l o d of

suspcns lon ,

u n l e s s 1112

absconds,

o r

u n l e s s otherwxse ordered by

t h e Board,

upon

r e p o r t

t h c

Chlef

O f f l c c r . "

Sect1011 62

d e a l s w l th

t h e

d l s c l p l ~ n e

o f fxce r s

charged wxth o r found g u l l t y of c r l m l n a l o f fences against t h e law punishable on lnd lc tment o r on summary convlct1.on.

s h a l l r e f e r t o t h a t sect]-on i.n

some

d e t a l l l a t e r .

Although S . 20 of Act No.

170 of 1978 provides f o r

t h e r e p e a l of

ss.

55-62

~ n c l u s l v e ,

a t tlle d a t e of

t h i s judgrnent

t h e r%peal.xng provlsxons

have

y e t

t o be

p r o c l a ~ m e d .

I r e t u r n t o t h e f i r s t ground of

a t taclc on the Chief

O f S l c e r ' s

d e c l s r o n t o suspend

the

p rosecu to r

1 4

March

1978.

S e c t l o n 55 (3 ) IS

t h e source of

t he powcr

t o suspend

exercised by t h e Chlef

Of f l ce r .

It may be e x e r c ~ s e d

b e f o r e ,

a t

t h c t jme o r subsequent t o t h e Iaylne;

a charge t h a t t h e

off Lcer

"has

comm~t ted an

offence ."

1 x 1

op ln lon the

of rcnce

whlch S.

55 (3) spealcs i s an offencc under t h e Act r a t h e r

t han an or rencc otherwxsc under

t h e l.aw.

The

sub-sect lof l 1 s

d l r c c t e d

p r l ~ n a r l l y

t o t h e

or fences

ci~urnerated

i n sub-sec t1 on

( 1 ) of

S .

55,

no t be lng mlnor

o f f ences .

h'o

c l l a r ~ e

was

e v e r l a l d against

t h e p rosecu to r

f o r an offence comlnltted under tllc Act.

The c l ~ a r g e s were

-32-

l a d f o r o f fences

under

t h e

Crimes

Act

l p l ! ~ ( ~ o m m o ~ ~ w ~ a l t h ) .

h a s n o t becn

contended

t h a t

t h e r e was

n o t

"reason

t o b e l i e v e "

t h a t

t h e

p rosecu to r

had

"committed

an of fence" under t h c Act.

One

o r more

t h e o f f ences

enurneratcd i n S. 55 ( 1 ) may have bccn colnmltted by t h e

p rosecu to r .

s a y no th lng f u r t h e r a s t o

t h a t .

I n h c r e n t

i n

t h e

p r o s e c u t o r ' s

submission

a r e

t h e

seeds of i t s own destruction because t h e submission conccdes

t h a t on t h e f a c t s of

t h3s case one cannot determine

t h e

v a l i d i t y of

t h e

suspens ion a t t h e

t ime

the power

t o

suspcnd was

cxe rc i sed bu t

on ly l a t e r ,

i n t h e l i g h t of

t h e

f a c t t h a t no charge was

eve r l a i d under t h e Act.

The

p o s i t i o n may

d l f f e r c n t

i f

i t were

e s t a b l ~ s h e d

t h a t

t h e r e was no intention t o l a y a charge f o r an orfence

under

t h c Act

a t t h e t ime

t h e p rosecu to r was

f a c t

suspended.

Th i s h a s n o t been contendcd and t h e evidence

would

n o t

suppor t

i t .

S e c t i o n 55

(3 )

(a) provldes

t h a t

" t h e

o f f i c e r

may be charged by t h e Chief Of f i ce r . . .

and may

i f i t i s

cons idered

t h a t

t h e

charge

i s of

such a

s e r l o u s n a t u r e

t h a t

t h e

charged

o f f l c c r should n o t

con t inue

i n t h e

performance of

h i s du ty , be suspended by t h e Chief

Off icer

...;" y e t paragraph

( b ) v e s t s t h e power

suspension i n t h c

Chief

Of f i ce r

be fo re

t h e

charge

i s l a l d a s w e l l

a s l a t e r .

The

language of

paragraph

( a ) p o s t u l a t e s , when r ead 11Lerall)

t h a t t h e r e i s something alswer1.ng

t h e description

" t h e

charge , 'l notwithstanding t h a t no charge has been l a ~ d

i n

facL at the tune of thc suspension. It !nay be that the

word "charge" where sccondly appearing in paragraph (a)

means "offence", or ~t may rncan s1.mply a prospective charge

that may be laid later. hllatever the answer to thls questlon

may b e , ~ t

support such a contention, that the Chlef Offlcer dld not

conslder that "the charge" was of such a serlous nature thax

the prosecutor should not contlnue in the performance or his

duty. 'l'hls frrst attack falls.

has not been contended, nor would the evldence

The second ground on which the Chlef Officer's

flrst declslon to suspend the prosecutor 3s challenged is

that the prosecutor was not elven an opportunity to be

heard whether orally or in wrltlng, 111 h ~ s

defence beforc hc

xias suspended. Thus the prosecutor seeks to invoke the rules

of natural justice.

There 1s a duty to observe the principles of

natural justlce whcther the relevant exerclse of author~ty

is judicial, quasi- judlc~

a1 or adn~lnlstrat

~ve: See Cooper

v. Wandsworth Board of Works (1863) 1 4 C.D.

(s.S.)

180 or

143 E.R. 414; Ridge v. Ualdw~n

1964 A.C. 40; Hunlc~pal

Council of Sydney v. IJarrls (1912) 14 C.L.H.

Twlst v.

Randwlcli >lun~clpal.

Councll. ( 1 976) 136 C.L.R.

106; Heatley 'ir.

Tasman3.an Racing and Gaming Cornr~~lssron

( 1977) 111 A.LR. 519;

and

v. Wilson: Ex parte Donaldson (1978) 19 A.L.R. The rule of naLural justice that a statutory

23.5.

autliorlty, having powcr to affect the property or officc of

a person, is obliged Lo hear h7.m before exerclslne the power,

may bc displaced by legislation. In Twist v. Randwlclc

-34-

Municipal Council (supra) Barwick C. J. said at pp. 109-110:-

"The common law rule that a statutory

authority having power to affect the

rights of a person 1s bound to hear him

before exercising thc power is both

fundarnental and universal:

see Coo er v.

Wandslrorth Rodrd or icorlcs

(1863)*

( N S )

180; 143 ER 414, and

v. Electrlcty

Commissioners; Ex parte London JSlectric tv J o ~ n t Commitrec Co. (1920) L t d . 1924 1 K.B.

171 at 205. Dui Lhe leglslalure may displace

the rule and provide for the exercise of such

a power without any opportunity being

afforded the affected person to oppose its

exercise. However, if that is the

leglslaeive intention it must be made

unaml?iguously clear. In the evenL that the

legislat~on

does not clearly preclude such

a course, the court w ~ l l , as it were, itself supplement the legislation by insisting that the statutory poriers are to bc exercised only

after an appropriate opportunity has bcen

afforded the Subject whose person or property

is the subject of the exercise of the statutory

power.

But, ~f the legislation has made

provision for that opportunity to be g ~ v c n

the subject before his person or property

is so arfected, the court will not be warranted

in supplcmentine the legislation even if the

legislative provision is not as full and complctc

as the court might think approprl atc. T~ILI~, if

thc legislature has addressed iLself to the

questlon whether an opportunity should be afforded

the citlzen to be relevantly heard and has eltller

made it clear that no such opportunity is to be

given or has, by its legislation decldcd rd>at

opportunity should be afforded, the court, be ~ n g

bound by the leg~slatlon

as much as is the

citizen, has no warrant to vary the legislative

scheme. But, if it appears to the court thax

the legislature has not addressed itself to the

appropriate question, the court in the protection

of thc citizcn and in Lhe provlslon of natural

justice niay declare that s Latutory act1 on

affecting thc person or property of the cirlzcn

wlthout affording the citizen an opportun~ty to

be heard before he or hls property is affected

is inefreciive.

The court w ~ l l

approach the

construction of the statute with J. presulnpi-ion

that the legislature does not intend to

deny natural jusLice to the citlaen.

Itmere

the legislation is silent on the matter,

the court Inay presune that Lhe lc~g~slature

has left it to the courLs to prescribe

and enforce the appropri ate procedure

to ensure nacnral justlcc. In my oplnlon,

thls statement of rclcvant principle is

in accord wlth the authorities, including

partrcularly the case of Wl.scman v.

Boriiclnan 1971 BC 297.

This passage was c~ted

with approval by hlckin J.,

in whose rcasons for judgment Stephen and Mason JJ. concurred,

in Heatley v. Tasmanian Raclnc: and Gaming Comn~lssli

(supra) ;

and by Bowen C. J., in whose rcasons for judgment Blacliburn J.

concurred, in L v. Wilson: It is posslble that leg~slalive

Ex parte Donaldson (supra).

s~lence

on the

questlon may give rise to an lnfcrence that Parllame~t

dld not intend the grant of power to be qualified. This

rnust depend upon the object of the Act of Parllalllcnt ~tsclP,

the purpose of the grant of power and the circumstances

surrounding that grant:

see Saletnl v. Ninxster for Immi.~rah

and Etlmic Arfairs (PITO.

2) (1977) 14 A.L.R. 1 and R, v.

wllson

(supra) .

The power to suspend vcstcd in the Chier OCrlcer or other officer havlng authority to lay chargcs under the

Act may be exercised before or at the time of or after

the layl.ng of a charge for an offence under the Act.

The

suspension operates pendlng dctcrnl~nation	of thc charge:
see S. 55 (3) (b).

The power of suspension vested in the C h ~ e r

Offxcer

undcr S. 55 is not for the purposc of ~mposln{{ a penalt>- or

sanction upon the officer concerned. Jt does not have Penal

consequenccs. Thc power of suspension exists to a;d

the

proper

admln i s t r a txon ,

t h e

maintenance

h igh

s t anda rds

i n t e g r i t y and

t h e

p r e s e r v a t i o n of

t h e morale

t h e

p u b l l c

s e r v i c e

A u s t r a l i a pcndlng

the

h c a r i n g

and

determination of

t he charge.

Lord Delrnlng had t h l s t o s a y i n Lewrs v.

Heffer

& O r s . 1978 1 W.L.R.

1061 at pp.

1072 and 1073:-

" 13.

Natu ra l

,)us

t i c e

But

t hen comes

t h e p o i n t :

a r e t h e N . E . C .

t o obscrve

t h e

r u l e s

n a t u r a l

j u s t i c e ?

I n

1970 Ch.

345, Meggary J.

h c l d t h a t t hey were.

s a l d , a t p.

397:

" s u s p c n s ~ o n

i s merely

expuls ion pro

t a n t o .

Each

i s pena l ,

and

each

d e p r i v c s

t h e member

conccrned

t hc

enjoyment of h l s r l g h t s of tncmbersll~p

o r o f f l c e .

Accordingly,

i n my

juclgr~~ent

t h e

r u l e s of

naxura l

jus Lice

prllna f a c l e apply t o any such

p roces s of

suspenslon i n t hc same

way	t h a t they apply t o expulsion."

Those words apply , no doubt , t o suspensions

which a r e l n f l i c l e d by way of punishment:

a s f o r

i n s i a n c e when a member of

t he Bar i s suspended

from p r a c t l c e

f o r s l x months,

o r when

s o l i c i t o r i s suspendcd

from p r a c t i c e .

Rut

t hey

no t

app ly

t o

s u s p e n s ~ o n s which

a r e

made,

a s a h o l d i n g operation,

pcnding i n q u i r l c s .

Very

o f t e n i r r c g u l a r l l i e s

a r c disclosed

i n a

governtncnl

department

o r i n a b u s l n e s s housc:

and

a man

may be Susplcl.on niay r e s t on him:

suspended

on f u l l pay pendl-ng i n q i i l r l e s .

and so hc i s suspended

u n t l l he IS

c l e a r c d of' i t .

onc,

s o f a r a s I

lcnow,

h a s

e v e r

q u c s t ~ o n e d

such a suspension on

t h e ground

t h a t i t coil1.d

n o t be done u n l e s s he

i s

s c n ~ c n c i n z

i h c acc-15cd P I I

t h e pt i o r r cc, :s lc :~,

%.c;:

rcc:zr!:s

1 c I r.

b e i n g made

t o t h l s a p p a r c n t oversight

a t t h e t r i a l t h e y

h e r e

n e v e r

f u r n i s h e d t o this

C o u r t

a t t h c h e a r i n g o f

t h e a p p e a l .

Thc

consequences a r e t h a t t h i s C o u r t

i s i n a

s i m i l a r p o s l t r o n

o f n o t convictions.

hav ing

v e r y

p r e c i s c

p a r t i c u l a r s o f

t h e

p r c v l o u s

T h l s i s a

v e r y u n s a t i s f a c t o r y

s i t ~ t a t i o n , where

t h e Cr0v.n

a ~ p c a l s

t c t h i s Coul4c a g a i n s t t h e lnaclerruacy

c f

s e n t e n c e .

The

C r o ~ . ~ l

h a s a clut:

t o t h i s C @ - ~ r t

a l s o t o s e e t h z t

i t i s f111 ly l n f o i m e d on

a l l r c l e v a n t n a t t e r s ,

and

i s s o

o l ~ v ~ o ~ t s

a s t o bc unnecessa r :

t c s t a t e t h a t p r i o r

c C . i \ - l c t i ~ n s

f o r o f c c n c e s o f

s i n i l a i . nri t t~r-e a r e cstreme1:-

ir.:,;rortant

t h c

q v c s t i c n

pcna l t !

i n t h i s a p y e z l .

The

coninn

f a c t s vh ic l .

c ~ c r g c c :

l n v , - r l c u s

a?-s 5efor .c

crir

l c;rzpc

s e n k c ~ l c j

112

j : ld=e

1 c r c t a a t c? . r ly

i n Jzn.7~1:- 1";s'

i l l t i ~ r

Su? rc~ ;c Cc, t i - .~

L c s t c r n A u s t r z l i c i n Pci%i: ch:

I-esrccclcn

: , ~ s

ccnvjctcc!

and

s c n t . c ~ ~ c e c :

t c t h r c c :-eai 5 lr,7risc-.r..-nt

on t; C

c c , u n t s c ?

crsc: l .

?!:c

scntcnci!:;

juc'ge

z c c c : - t t r '

' .hcsz

f a c t :

c:lc'

t h e r L , s ~ c n d e n t

hts

n c t

ccntei;de.'

o t ! ~ c r , . r s c C.?

t h e hc21-1.-;

of t i . is 2::?2,21. :L.o~tt t!?is i r . 7 ~ 1

rc7c.i.t t,::~l j ss.:c

t h c t t h c r c \ . a s c

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c x i d c : ~ c c

znd it. 1 . 2 5 L:IC

Cl,..,

r.':

c' tt:

t r : r i C .:c:

t h z t

t h :

cc.,:~-:

f u l l y ~ i ~ f o r r ~ c c i .

Tlie r -1 e r c c i t ~ l @i

t h e i c c t s c f c.11-

cr^fer,ccc nr

L:I.C!L:

;s.iC c!?? rccpc.lc!cntt S zi:l;ccec!"r.Lr

, ?.r?znt cc;lsic!zl atin::

c f

s ~ l L s ; ~ n C i n l

~ z c . 1

sc;ltc.:ces

f o r t;cLt

crfc.-icc.

1!12 :~r.:.~m!-.

S C I - L I . ~ ~ '

:CS:

t : : ~

S . ~ < C I C C o;

~rs3:i 2 s cl~ci-=e(:

i i l t!:.z

i l r s t

c o x n t

- i3tce, . !

c z r s :

t h c n,?:,iz:.:::

pci.r.lt;-

r.1 c scr ikcc :

Cc.:

t ! lc s.:bsL1';.:tctl

:t:cond

c o - ~ n t

i s f i x ?

y c i r s .

C,; Lc:.zlf oZ t!li. rcs;c.:dcnt i t :

2 s c < ~ t c , i < ~ ( :

-.t

:!,c

t ~ i ; ? .

t ! ~ c t h c h:?

a r. ,&cr of rcc@;xi s:,';lc

<cc;-sc;;tcc'

::I:. C!I< l c' . l c : l

scntellcccl t o a tcl-111 o f

impr i sonmen t .

c o n s ~ d e r a b l c

b o d ~ of

p s y c h i a t r i c

and

p s y c h o l o g i c a l

m a t e r i a l

r \as

p l a c e d

b c f o r e

the

s e n t e n c i n g judgc

I n t h i s r e s p e c t .

T h e r e r \ a s a l s o

sornc

cvlcience

o f

g e n e r a l good

c h a r a c t e r .

B e f o r e

t h e sentencing

judge

t h c

r e s p o n d e n t

a l s o

o f f e ~ . e d

t o make

restitution

t h e s l i m of

$3900.00

a t t h c r n t c

5 2 j . 0 0

p c r s ~ e e k , p r o v ~ d c d

t h a t hc r\ns

n t l i b e t - t y ,

n o t

i n c u s t o d y ,

and

a b l e t o g a i n

s a t i s f a c t o r y

cnploymcnt .

Ilc

i n c i ~ c a t e d ~

t h r o u g h

h i s co? lnse l ,

t h z t i f

t h e

t r i a l jnrdze

r a s c ' isr>osed t c o r d e r h i s c o n h t l r n r i l

r e l e a s e ,

r ~ p a y n t e n t

c f

t h c c n s t o f

t i l e d s ~ z g e

c o u l d

c o n d i t l c n

t h c r c l e p s c s v b i c c t cc

h i s ability

t o pay.

Tile

c o s t C C t h e

cia~?.-gc 35

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h >

t l l e

r e s o n d e n t ' s

c o u n s e l

r 2.5

n c t s c c e p c c c

b. t!?c l o s s a s s c s s c r

Crour..

Thc

c v l d e n c c a ~ - z l l . t b l e

t o 1.he Cr-c, .I

r . ? 5 %.:t

l:ai

n s s r . s s c d t h c

dama:e

a t

320,

j Z , ' . C : . 0 .

i h i s

11;s

an c s t i x s t c c?

t?.c

c c r t o f

r e ; 3 2 i r ~

h c f c r e

21::

re?z.;rs

n c r e

ilnc'ert?:cen.

1h.- .c.cr.tencing ;.?dge na6e ::c

f ~ n t i i r : ~

c f

Ezc t a:;av-lt

t!re ccs'; t h c s e n t e n c e s im7csec:

o r re;?.Lrs

thou<,.h i t seems l = . - l ~ c i i f

I c?. t 1 . i

t e r n s c f

and

i n n 2 r i l c u l a 1 . t l : ~

t c r : : ~ or'

c5c

c c n c h z ~ c n a l

r e l c , ? sc

t h e

~ e s p o n d c n t ,

t!:ct

ilc

z c c c ? ~ c r '

t h c

f l g n r c of

-350C.00

a s c e - t c d

by t h e r e s?onden t .

I n m:-

vier

t h e

cl-iclenct:

v.;s

CC?

f l i n s - ' 011

t h i s 1 : l~ i t c i . and it 1.2s s ~ ~ r c l j

rclc:-zllt

cc~'slc!cr~Ltlr.n f o r t h e t r i d J ~ I C ! ~ ~ .

T h c Crorr.

s h o : ~ l l

hnve bee]; i 1 1 ;. p c s i t i o n cnc! sho1:lcl h-tvc &sch:.r,-od

i ~ r

l .~ t>

t c

1nfcr :n t i l e

c c - l r t C L L ~ C I , L )

cvi<!e:~ce CI-

L ? C C C ? ~ C ( ~

1,:

t h c

acc l~scc l pcrsolr

o f

t h e

c o s t o?

t i l c

1?22-.~t~e

t o t h c .

C r o s s

p r e m i s e s

r e f c r r e d

t c I n t h e f l r s c c o u n t .

c a n n o t

o v c r -

cmphr,%isc c!lc

I-.igh

c i l ~ t x c n t!lc

Cro i~n

i n cr~rr.ll.i;.l c ~ s c s

t o

rcndel- t h e u t ? o = ~

r : s s ~ s t a ~ c c

t o n

scl:v,c!lcl~eg , ~ ~ ~ c ! g e

I n

h l = .

2 C u i r 1 l s t r s t i ~ ; i

t h c c r ~ m i n z l

1n1 .

I n

e n d e a v o u r i n g t o

s t r i k e a

b a l a n c e

b c t w c e ~ ~

t h e v a r i o i ~ s

c o n s i d e r a t i o n s

v h i c h

s c n t e n c ~ n g

judge

must take intcr accol ln l ,

h i s Ifonour

gave

c o n s i d e r a b l e

we igh t

t o t h e

r e s p o n d e n t ' s

p r o s p e c t s o f

r e h a b i l i t a t ~ o n .

s a i d t h a t t h e o n l y t r u e

s o l u t i o n

l a y i n t h e p r o v i s i o n

o f

o p p o r t ~ i n i t y

t o t h e

r e sponden t

making

u s e f u l ' l i f e

f o r h i m s e l f .

F o r

t h e s e

r e a s o n s he

imposcd

s e n t e n c c s which

c a n

o n l y

d e s c r ~ b e d

a s

e s t r e m e l y

m e r c i f u l .

The

Cror\n

h a s

con tended

t h a t t h c

d e g r e e

l e n i e n c y

i n h e r e n t

i n t h e

s e n t e n c e s

r e n d e r s

them

i n a d e q n a t e

and i n a p p r o p r i a t e ,

h a v i n g

r e g a r d

t o the

g r a v i t y o f

t h e o f f e n c c s .

I n my

vielx.

t h e r e f o r m a t i v e

a s p e c t

h a s been

g i v e n

t o o m ~ c h

r%*eight

and

i s d ~ s p r o p o r t i o n a t e

t o t h e circumstances o f

t h c

o f f c n c e s and

t h c

r e s p o n d e n t ' s

antecedents.

Nor

a r c

t!lc

p r o s p e c t s o f

r e h a b i l i t a t i o n

s u p p o r t e d

t h e

psycho10,-icnl

and

p s y c h l z t r ~ c

e v i d e n c e .

The

r e s p o n d e n t

p r c s c n t e d

pc r son

w i t 1 1

r e c o g n i s a b l e

p e r s o n a l i t y

d i s o r d e r s ,

b u t

e c i l a l l v

does n o t

a p p c a r t o hzve

l e a r n c d any

l e s s o r .

f ro,n h i s

conv ic t ; ions

and

s e n t e n c e s i n l i c s t e r n

A u s t r a l i a

i n Jnnile?-y

lC;!'.

Onc i s l e f t ~ , ~ l ; h

e g e n e r a l

i n p r e s s i o n

t h z t ,

g l v c n t h c coti.5-

i r l a t i o n

o f

a l c h o l i c influence

and

resentment

a t h i s f e l lov .

h~rnzl l

b c i n g s , t h e

respondent

is a u i t e l i k e l y t o o f f c n d

a z a i n i n s

s i m i l a r 1 . a ~ . IIe

h a s n e v e r

e x p r e s s e d any

c o n t r i t i c n

f o r hat

h e d id .

When

s p e a k i n g t o t h e

p o l i c e o f f i c c r i n one of

t h e

t a p e d

te l .ephonc

c o n v e r s a t ~ o n s

m a i n t a i n c d

t h ~ . t

n o t

a t a l l s o r r y fox.

what

had

done.

T h c r e t . as n o t h i n g i n t h e

psycho10,rrical

and

p s y c h i a t r i c e v i d e n c e

c a l l c d on

h l s b e h a l f

1,hich

i n d l c s t e d any

remorse

o r c o n t r i t i o n f o r 111s

c c n d ~ ~ c t

c t e sp i t e

vcr:.-

e s t e n s i v e C O - i n s e l l i n g s l n c e

r e l e a s c

f r - n

p r i s o n

i n A n r i l

1073

and

s a b s e q - l e n t t o 111s

a r r c s t on

lake

p r e s e n t

c h a r g c s .

The

r e s u l t o f

t h e

s e n t e n c e s imposed rvas

n o t

t o p r o v l d e

cond ign

p ~ n i s t u n e n t , n o r

t o r e f l e c t

t h e general

m o r a l

s c n s e o f

t h e community

(Channon

( 1 9 7 8 )

20 A.L.R.

1) .

I n m y view

t h e

s e n t e n c i n g

d i s c r e t i o n

h a s m i s c a r r i e d

and

t h i s C O I I I . ~

s h o u l d

i n t e r v e n e .

A s t h i s C o u r t

s a i d i n The

O~lccn v.

p l n d a b l e

(unreported

d e c i s i o n ,

d c l ~ v e r e d

i n B r i s b a n e

t i a r ch

l?;?)

t h e rev ier ,

a p p e l l a t e

c o u r t

o f

s e n t e n c i n g

j u d g c ' s

d i s c r e t i o n

t o s u s p c n d

s e n t e n c c s

i ~ ~ v o l x - e s

t h c same principles

a s a

r ev ie r< of

t h e ~ u d i c l a l

d i s c r e t i o n t o impose

t h e hcad

s e n t e n c e i t s e l f

( ~ h c

nucen v.

Sh~~e>r*c l

( 1 9 7 2 ) 4

5 . A . S . r .

a t

4 3 )

ancl if t h e s e n t e n c e a s a

hole

i s s c c n t o be

so d i s -

p r o p o r t i o n z t e

t o t h c s ~ ~ ~ t c n c c

r .hi

t h c

c i r c u ~ : , s r ; a n c c s

rccv11 r c

e s t o ~ . n c l j c a t c an

or^

n r i ~ ! c i p l c , t h e

a ~ n c l i c t e

c o u r ~

sllo:~l d

intervene.

T h c r c

!:ere

tr .o

s e g z r a t c i n v s s i o i l s of

7 r c n c r t : -

c-z-.itt,:c!

cn t h e

say.?

r? ight .

@ n e c l a t t e r t.3

cons lderec '

1s \ . i>e t :~e r

t h c

s c n i e n c i n b ~u2:e

v.as

c o ~ r e c t

i n or . icr in , -

t h ? ~

t h e

sc . tcncc-h t c

s c r v e d

conc l : r r cn t l : ,

n a r t i c ~ ~ l ; . ~ l y

ss the:.

!.ere

r9! lce

c ' is t i r lc l :

s c n t e n c c s .

l h e ~

I.erse

c c . c ~ n i t t e S cn

t l i c

s . v c

n i g h t

i l ;

~hc-

ss:-:-

l o c a l i t v anti

~ % l ~ c n

t h c

r e s ~ c n c ! ? n t r \ a s '~nc:el th::

i n i l a c n c c

r,r

i n t c s i c ; l t l n =

I l r ~ o r . .

t?Lnl:

the

s e n t c r . c r n g

1,1cLc*ri.;c t.j\i

tn!zen

t h c s e c ~ s t t e r s

i n t o acco.!nt

i n 01 c : e r ~ n g

t h - t

t h c

s r i i z c n c e s .

be serxecl conc.!rrentl : .

and t h a t h c rmzc n 3 t

i n c r r n ~

i n Leiny

so .

F o r

c h c

r c a s o n s

~ n d i c a t e d ,

hor .ever ,

do n o t t l , i nk

tk; t

this

C o u r t

shonl t i

mzke

s n y or-dcr

i n r c s p e c t

ci t h c

s c n t c n c e on

t i l e

substituted

second c o u n t .

I n relation

t o t h e f i r s t c>a.tnL, onc

i s r e q a i r e d c p p r o p r i z t c ,

t o c o n s i d c r

\ , ha t

s e n t c n c c

1 .0~1 ld

r e ? r c s e n t

t!ic

d:11y

p r o p o r t ~ o n s t c 2nd

~ - . r o n c r l >

L.ala~lcer! s c n t c ~ l c c

I n n:y

vier'

t h e head

s c c t e n c e on t h e f i r s t c ~ u n t

!,as

u n a p p c a l a b l c

and

s h n ~ l d

stzncl.

I n o r d e r t o p r o v i d c

a p p r o p r i a t e ,

d:llv

p r o p o r t i o n n t e

a n d

p r o v e r l y

b s l a n c c d

s c n t c n c c

think i t i s a n g r n r > r i a t e t c spccrf:-

p c r i o d oC

t1.o

!-cars.

sls months c!~:~ln;; ~ . ! l ich t h e respondent ! . i l j

n o t b c c l l ~ ~ l ~ l c

for p n r o l c .

n o t t h i n k

t h n t t n c

senecncin,c

j . ~ c i , - c shcvlic:

h x r S-IS;>C~I~:CC:	cilc	d ~ c i - a c i o i l of	SE-- i>oi - t lcz cl^	t h c	r~s-,2.:c.r:?rf	-
s c n c r n c c .

In thc :-i.s4:lt

I I o31iG , ~ l i

cl.

t h c

ay-cnl

:l?<

r ~ y ' r - r :h::

j h .c8.1:=tl:l-cjcn

for t h c s f q t c n c c izyc. ic< PI:

t h c i l l - G :

r c -.,L

::.c

l <

5 , - ~ . : < < - b - t \

(

ln-rJ5- . :?c<

roi- :

y - 7 2 < - < :

0.- imt-

-Jec\-s

'TAT(

te-

r r o t > t : ~ s nhci I

w e u h d spccidg

pcric,d cc

t u n : - ~ ~ i - s .

:r x

m r n t k s

d u r i n g

which

h e w,l\ ne,t be el

?nbLe Tor pa;..ate,

c e r t i f y t h a t t h i s and

t h e e i g h t e e n

p r e c e e d i n g

p a g e s a r e a

t r u e copy of

t h e Reasons f o r J11d3nerlt

h e r e i n

h l s Honour Mr.

J u s t i c e G a l l o p .

A s s o c l a t e .

2 7

J u n e

1 0 7 9

IN THE FI?l)EIL1L COURT OF AUS'1'17ALCX

1 1

MORTHERK TERE ITORY DISTRICT REGISTRY	So. XTG 11 of 1379
GENERAL DTVTSION

OS APPEAI, FRO>[ THE STJI'RE'IE

COTTRT OF

---

THE ?JORTlIEI?N ~LI?l?l?~OliY	01,' -ir;>'CiLiLJ:i
BETWEEN :

THE

q u m r

Appellant

AND:

PIIILLIP GRAHc\>I IIALL

Respondent

CORAV: TOOHEY. GALLOP & LOCICHART JJ.

Thursdav 28 June 1979

REASONS FOR JVDGKEST

LOCKHART J. This is an appeal agalnst sentencc xnposed by the Supreme Court of the Northern Terr~tory following the

conviction of the respondent on tuo charges: flrst, thar

he unlawfully and rnallclously set flre to a bulldlng conrrar)-

to S. 86 of the Crlnllnal Law Consolldatlnn Act and Ordil~anc~.

and secondly that he cornrnltted unlawful and mallclous damage

in tho n ~ g h t

contrary to S. 129 thereof.

On 20 dprll 1979 the learned sentcnclng jcdge

sentenced the rcsporldent on the flrst charge to four years

and ten months' lmprisonmcnt, w r i h a non-parole per1r.d of

two years, and on the second charge to t w o years'

llllprrsonnicnt wlth a non-parolr: pcrlod of one year and

ordered that the sentences be serl-ed concur-,enLly. He

further ordered that Lhe respondent be released from

custody on 2 .July 1979 on the following condlt Ions:-

1 . That he enter into a bond in hls ovn

recognizance in the sum of QJOO.OO

to be

of good behaviour for a period of thrcc

years ;

2. That he place hlmself under the supervision

of a probatlon offlcer d u n n g the sald period of thrce years and obey the dlrectlons of rhe s a ~ d probatlon off~cer as r:o employment and place of

llvlng and that he report to the said probatlon

officer on 2 July 1979 and obey his direczlons

as to further reporting and that he subject

hlmself to such medlcal psychlatr~c

psycholog~cal

treatment as may from time CO

time be d~rected

by hls said probar~on

officer

and those from Time to time in charge of hls

treatment; and

3. Thar: he pay by way of restitution, the sun

of $3,800.00 by instalments as fo1lovs:-

(1)	$300.00 by 20 December 1979:
(ii)	$1,000.00 by 20 December 1980;
(iil)	$1,500.00 by 20 December 1981; and
(iv)	$1,000.00 by 30 June 1982.

The Crown appeals agalnsr thls sentence, submlttlng

that thc sentence 2s so inadequate as to n~anxfest an error in prlnclple on the part of the learned sentencing judge. It is not submitted that any error appears on the face of his

Honour's remarks; but it 1s said that tllc sentence lmposed falls so far shorr: cf the range of c-entences vhlch would be

d~ctated

by thc exerclse of sound judic~al

dlscretlon that

t h ~ s

COUI-i shoulrl lllterven:? arid impose a sentence whlch IS

appropriate 111 the clrcun~srar~ccs

The respondent llved at No. 1 1,ambell Terracc Darwln close to the D a r ~ ~ n

IIosp~tal

and Lhc Red Cross

Centre. Thc house was osnecl by a Mzns Fleper.

She

occupied the house toecther vxlh the respondent and a Hr.

T. J. Flndlay. Each person occupled a separate bedroom

and shared facllltles in common.

The respondent had been llvlng at those prelnlses

for about two weeks before the events or 20 Kovernber 1978.

For about six or seven monshs before then, he had

been worklng on a voluntary basls wlth rhe Red Cross dolng

jobs such as Meals On hl~eels. On 17 Sovember 1978, three

days before the respondent set the fli'es ~.-hlch led CO hls

conviction, he telephoned zhe Recl Cross Centre and enquired

whether he could purchase some vases from the Red Cross

Opportunlry Shop whlch formed part of the Centre. He enqulred

as to what type of items were kept in the shop and was told

that zhere was clothing, kltchenware, beddlng and mattresses.

On Sunday 19 November 1978 the respondcnz and Hr. Findlay together with one other person arranged to dlne at a restaurant in Darwln called "Mellssa's Restaurant" khlch k-as owned by the same lady who owned No. 1 Lambcll Terrace,

Darwin namely Nlss Fleper. The respondent arrlved at hls two dlnner companions about an hour later. He was not

intox~cated

when he arrived at the rcs~aurant,

but during sbc

coursc of the even]-ng the rhree people consumed a few drlnks

before dlnner, four bottles of wlne with dlnner and posslbly

some beer also. The three people left the restaurant somewhere

between 12.1 j and 12.45 a.m. the respondent belrlg somewhat

intoxicated. He was drrven back to h ~ s

home by Mr. Flndlay

the restaurant about half an hour after the respondent dld

and she too went home, taklng wlth her s s x bottles of Crown

who went to bed about flve mlnutes latcr. MLSS Fleper left tlll about 3.00 a.m. during whlch tlrnc the respondent drank two cans of beer and Mlss Fleper one bottle of Crown Lager.

At about 3.00 a.m. Hiss Fleper retlred to her room

and went to bed.

P r ~ o r

to her dolng so the respondent trled

ta dlssuado her by ask1r.g her to stay up and have some more

beer, but at that tune the respondent was falrly drunk. Upon

her retirement Mlss Fleper left flve full boztles of Crown

Lager beer; buz when she rose in the morning she notlced that all five bottles were empty although the respondent had been d r ~ n k ~ n g cans of Carlton Draughr. bcer whllst the two of

them conversed untrl the early hours of the mornlng. Crokn

Lager bottles hold thlrteen ounces of beer.

At 3.35 a.m. the co~trol

room of the Xorrhern

Territory Fire Brlgade recelved a message that there was a

fire in Shultz Street whlch runs off Lambell Terrace. At

3.36 a.m. the flrst flre truck arrlvcd, and notlced that the

Red Cross Opportun~ty

Shop was on fire. It toolc the flre

brigade about 10 mlnutes to brlng the flre under control

The observations of the flremcn were that Lhere wzs onc

room in whlch the flre had obviously starced b e ~ n g

bedroom in w h ~ c h

thdre was a becl and mattress. Jt was a

room lcept by the Red Cross for accommotlatlng people who

vlslted D a m l n from the outbaclc to see thelr relatives or

frlends who were xn the Darwln I-Iosp~tal. There was nobody

resident in that room that nlght.

At 4.11 a.m. the Control Cencre of the Flre Brlgade

recelved a second call m connection wlch a flre in the fire brlgade was at the Red Cross CenLre at that tlme; they

moved to the second flre and broughc it under control by

4.20 a.m.

When the fire brigade arrived at the Psychlatrlc

Cllnlc it was full of smoke but they were able to restrlct the flre to a small storage room where the flre had been started and which contained highly lnflammahle materlal in the form of toilet rolls and paper towels.

I need not review the evldence as to the witnesses

who identlfled the respondent as the person who srarted the

flre because there is no d o h t that it was he who did so.

At 4.43 a.m. the pollce communications centre at Darwin recelved the flrst of four telephone calls from a person claiming to have llt the flres at the Psycillatrlc Clinlc and the Red Cross Opportunity Shop. -1 second call

was recelved at 5.00 a..n., the thlrd betwecl1 5 .20 a.m. and

5.25 a.m. and the final call. al. about 7 . 0 3 a.m.

Steps liere talcen to trace the calls. They were

traced to the prcmlses of So. 1 Lambcll Terrace. Thsreaftcr

the pollce surrounded the prcrnlses and arrested the rcspondcnr

Before the respondent was arres tcd, ?IT. F~i~dla?

rose at about 6.40 a.m. and spoke to the respoildent who was standlng in the kltchen krearlng a dresslng gcwn and dr~nkrng beer. The respondpqr: told >Ir, Flndlay that he

had been up all nighs and had seen vehicles wlth flashlng

lights travelling up and down In front or' rhe house. Y r .

Findlay notlced that there were four empty Crown Sager bottles of beer.

At about 8.00 a.m. at the pollce statlon the

respondent was questioned by the pollce. He cla~med to have slept untll 7.00 in the mornlng and denled that he

had made any telephone calls durlng the evenlng or rnornlng

and sard that he was asleep.

He denled any knowledge of the

fires at the Red Cross Centre and the Psychlatrlc Cllnlc.

He then sought legal advlce and, h a v ~ n g	obtalned it, declrned
to answer any further questions.

There was considerable damage to the Red Cross Opportunity Shop. The damage to the Psychlatrlc Clinlc was

restricted to rts contents.

1s not the flrst tlme that the responacnt

has been convicted of arson. In January 1376 he was

sentenced by thc Supreme Court of Western dusrralla in

Perth to rmprlsonmcnt for three years on rwo counts of arson

T h ~ s

w ~ t h

no parolc pf?rlod b e m g flsed.

The respondent w a s

releasecl from prlson in Westcrn Australia on 8 :Iprll 197s

having served hls serltel~ce for two years and three months.

Withln less than elght months he had lit thc flrcs Ln Lhc

Red Cross Opportm:nlty S11op and thc l'sychlatric Centre of the

Darwln IIosp~tal The Crokn contended before t h ~ s

Court that the

learned sentencing judge should have lmposed a substantial

sentence on each count and si~ould

have found in all the

circumstances that no non-parole perlocl should be speclfiec.

Thls court wxll interfere vlth the sentence imposcd

by the learned sentencing judge if it 1s establ~shed

zhat hls

Honour was in error in acting on a vrong principle or in

wrongly determinxng some mater~al

evidentiary question.

T h ~ s

court does not intervene merely because in its opinlon the sentence IS excessive or inadequate. The errar may appear from the learned sentencing judge's remarks or from the

sentence itself ~rhich niay be manifestly insufficle~lt or

excessive.

See Skinner v. ~ ( 1 9 1 3 )

16 C.L.R. 366;

Whittaker v. 112 (1928) 111 C.L.R. 230; Grlff'lths v. R, (1977)

15 A.L.K.

1 ; R, v.

(a decision of the Full Bench of

thls court delivered on 1 May 1979, not yet reported.) Although the Federal Court of Australia Act 1976

does not dlstlnguish in principle betveen appeals by +l;?

Crown and those by convicted persons, some special conslderatlons arise where the Crown appeals on the ground that the sentence is insufficient. See Peel v . R, (1971)

125 C.L.R. 447 especially per. Barwlck C. J. at p. 452;

Talt (supra). In R. v.	-	Talt (supra) Brennan, Deare and
Gallop JJ. said:-

"It would be un~ust

to a clcfendant, who-e

freedom 1s in jeopardy for the second tllne,

to conslder on appeal a case made against

hlm on a new basls - a b a s ~ s

w h ~ c h

hc ~lught

have successrully challenged had the case

agalnst hlol been fully prcsentrd before

the sentencing court. ..There would be few

cases where the appellate court would

intervene on an appeal agaLnst sentence

to correct an al1.egcd error by lncreaslng the

sentence if the Crovn had not done 1,711at was

reasonably required Lo ass~st

the sentencing

judge to avold the error, or if the defendant

were unduly prejudiced in meezlng for the flrst

tlme on appeal the true case agalnst hlm."

In the lzght of these principles I turn to the

present appeal. The Crown subrntted that the learned

sentencing judge lmposed senrences so manifestly inadequate

as called for the intervention of thls Court. The Crown

contended that hls Honour had regard solely to the questlon

of rehabllltatron of the respondens to the exclusion of

matters of deterrence and the general protection of rhe

community. The Crown submitted that hls Hoilour's error

is manifest from an examlnatlon of first, the inherent

nature of the offences themselves; second, the clrcun~stances

surrounding the commission of the offences; thlrd, the

character of she respondent particularly when cons~deratlon

is given to hls antecedents, and fourth, the future prospects

of rehabilltation of the respondent as opposed to the very

real prospect of a repetitlon by hlrn of the same sort or

offence.

The maximum penalty prescribed for the offence, she subject of she flrst count, 2s fourteen years' imprlsonmcn..

In Tait's Case (supra) the Court said:-

">\ miximum pennlry 1s roserved for the worst

type of' case falling w l L h ~ n

the relcvanr

prohlbltlon. Thc observance of rhls prlnclple

provldes the f'lcxrbillty In sentcnclng ~ 1 1 1 ~ 1 1

secures proport~on

and comparabrl~

ty among

sentences imposed. . .The prescf-~blng of a maxlnlum penalty 111 respect oi' an offence not only n~arks the illnits of the court's drscretlonary power as to sentence, it also ord~narllv p~'escrlbc?s w h a t

the penalty should be in the hrorsL type of case not be smposed in a case ~ r h ~ c h othc~-~rlse requ~red lt merely because a h'OrSC case could be irnag~ncd.

wh1.ch falls wlxhln the relevant class of oEfcnce.. .

... That prlnclple requlres chat both che naEure

of the crune and the clrcumstancas of rhe crimlnal

be considered in determlnlng whether the case is

of the worst type. "

The clrcxmstances surrounding the commission of the offence end the antecedents of the respondent requlre

lmpos~tion

of a substantial sentence.

The deterrent aspect of punishment 1s of considerable

importance in cases of thls klnd. The sentence should

demonstrate to others tempted to engage in offencesof a like

nature that pun~shment h-111 be lmposed calculated to protect

soclety from serlous attacks upon it.

It was submitted by counsel for the respondent t h a ~

it would not be In the best lnterest of the respondent to be

sentenced to a term of lmprlsonment as he was a person

suffering from deep-seated psycholog~cal

problems. d great

deal of psychlatrlc and psycholog~cal

niaterlal was before the

learned sentenclng judge. Hls Honour gave great welght to

what he regarded as the respondent's prospects of

rehabllltation. I have no doubc that the respondent ~mpresscd

hlmself upon the learned sentenclng judge as a man wlth

distlnct disorders of personality. 131s Honour clearly held

the vlew that thc respondent was capable of b e ~ n g

rehablillate,

provided he had the support of probation officers, psychlat-

rlsts and psycholog~sts. I havc consldcred che psychiatric

and psycholog~cal

evldencc pLaced before his Honour but have

come to the conclus~on

1.t does not support hls Hononr's

conclus~on The rnaxlmuln penalty prescribed for the flrst offence

as to the respondenl's prospects of rehabllltat~on.

namely fourteen years' rrnprlsollment, reflects its seriousness. respondent had been released from prlson in Western Austral~a

havlng earlier comn~ltted offences of a llke nature there.	I
am left with the strong lrn?ressron that the respondent is

qulte likely to offend agaln in a simllar way.

In my

oplnlon the reformative aspect was glven too much welght

by the learned sentenelng judge. The result of 111s Honour's

declslon when the sentence is vlewcd as a whole, 1s to

produce a sentence so lenient zhat it does not accord \nth the general moral sense of the cornmunlty and 1s unllkely to be a sufflclent deterrent to thc respondent or to others.

See R, v. Geddes (1936) 36 S.R. (~.S.~)jj4; Channon v. R,

(1978) 20 A.L.R. 1; R, v. Prindable - a decislon of the Fuli

Bench of thls court delivered 9 March 1979, not yet reported.

The error in the sentence of the learned sentenclne judge is manifested particularly by the provision for the

release of the respondent on 2 July 1979 and as well by the

term of the non-parole perlod.

In my oplnion the case calls for a sentence

itnposlng a term of In,prlsonment wlthout such release and

the flx~ng

of a longer rroll-parole perlod.

I do not thlnli

~t ncccssary to alter the term of the head sentence.

l agree wlth the conclusion bf Gallop J., whosc

reasons for judgment I have read, that no order should be

made by this court in respect of the sentence on the

substituted second count.

In the result I would allow the appeal and order

that in substltutlon for the sentence imposed on the first

cour~t the respondent be lmprlsoned for a perlod of four

years ten months.

I speclfy a pe r ~ o d

of two years six months

during which he will not be ellgrble for parole.

The

sentence will date from 20 A p r ~ l

1979.

I agree wlth the learned sentenc~ng

judge that

the sentences imposed on both counts should be served

concurrently.

[1979] FCA 79

13 Aug 1979