O'Connell v Palmer

Case [1994] FCA 909

JOHN RAYMOND O'CONNELL v. MICHAEL J. PALMER IN HIS CAPACITY AS COMMISSIONER OF
POLICE, AUSTRALIAN FEDERAL POLICE
No. SG46 of 1994
FED No. 909/94
Number of pages - 6
Police - Statutes
(1994) 53 FCR 429

(1994) 76 A Crim R 140

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
VON DOUSSA, O'LOUGHLIN AND BRANSON JJ

CATCHWORDS

Police - Federal Police Disciplinary Tribunal - search warrants - improper conduct - whether necessary to prove that member charged had knowingly acted improperly


Statutes - retrospective operation of regulation concerning standard of proof - whether regulation deals with matters of procedure alone


Complaints (Australian Federal Police) Act (1981) Cth ss 67, 78, 79, subs 11 (4)
Australian Federal Police (Discipline) Regulations rr18, 19A, 49
Complaints (Australian Federal Police) Regulations r9


Hardcastle v Commissioner of Police (1984) 53 ALR 593 at 597
In re a practitioner of the Supreme Court (1927) SASR 58 at 61
Bercove v Hermes (No.3) (1983) 74 FLR 315
Commissioner of Police v Sloane (Jenkinson J, 25 September 1985, unreported)
Rodway v The Queen (1990) 169 CLR 515
Newell v The King (1936) 55 CLR 707
Attorney-General's Reference No.1 of 1988 (1988) 49 SASR 1

HEARING

ADELAIDE, 14 November 1994
#DATE 28:11:1994


Counsel for the Applicant: Mr G.F. Barrett


Solicitors for the Applicant: Duncan and Hannon


Counsel for the Respondents: Mr T. Howe


Solicitors for the Respondents: Australian Government Solicitor

ORDER

The Court Orders that the appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

VON DOUSSA, O'LOUGHLIN AND BRANSON JJ This is an appeal pursuant to s.79 of the Complaints (Australian Federal Police) Act 1981 ("the Complaints Act") on questions of law arising from a decision of the Federal Police Disciplinary Tribunal ("the Tribunal"). Despite the use of the word "appeal" in s.79, and the requirement of the section that the jurisdiction to hear and determine the appeal be exercised by the Full Court, the Court acts in its original and not in its appellate jurisdiction when exercising this jurisdiction.

  1. The applicant is a member of the Australian Federal Police.

  2. The Australian Federal Police (Discipline) Regulations ("the Discipline Regulations") vest in the Commissioner of Police ("the Commissioner") the power to institute proceedings against members of the Australian Federal Police in relation to disciplinary offences. The Discipline Regulations are made pursuant to s.70 of the Australian Federal Police Act 1979. They are "prescribed regulations" for the purpose of the Complaints Act (see ss.4 and 67 of the Complaints Act).

  3. Regulation 49 of the Discipline Regulations provides that:-

"The Commissioner may, by instrument, delegate to a Deputy Commissioner, a member or a staff member any of the powers of the Commissioner under these Regulations".

  1. The proceedings which culminated in this appeal were instituted by a Deputy Commissioner apparently in reliance upon an instrument of delegation pursuant to regulation 49. Section 67(1) of the Complaints Act provides for such proceedings…

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Details
AGLC
O'Connell, J.R. v. Palmer, M.J. [1994] FCA 909 ((1994) 53 FCR 429; (1994) 76 A Crim R 140)
Case
[1994] FCA 909
Decision Date

CaseChat Overview and Summary

The case of O'Connell v Palmer involved a dispute regarding the conduct of a Federal Police officer. The respondent, Mr Palmer, was alleged to have engaged in improper conduct while executing a search warrant. The appellant, Mr O'Connell, sought to appeal the decision of the Federal Police Disciplinary Tribunal, which had found Mr Palmer not guilty of the charges against him. The appeal was heard by the Federal Court of Australia.

The central legal issue before the court was whether it was necessary to prove that a member of the Federal Police who was charged with misconduct had knowingly acted improperly. The court had to consider the standard of proof required in disciplinary proceedings against Federal Police officers. The appellant argued that the Tribunal had erred in its interpretation of the applicable legal standards, asserting that the respondent should have been found guilty based on the evidence presented.

The court examined the relevant statutory provisions and case law to determine the appropriate standard of proof. It concluded that the Tribunal had correctly interpreted the law and applied the proper standard of proof. The court held that the Tribunal's decision was not erroneous, as it was open to the Tribunal to find that the evidence did not establish the necessary level of knowledge on the part of the respondent. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

The Court Orders that the appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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