O'Connell v Palmer

[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 to be heard and determined by the Tribunal.

2. Two notifications of the institution of proceedings were given to the applicant. Each of the notifications purported to relate to "the institution of proceedings in pursuance of regulation 19" of the Discipline Regulations. In fact it was agreed between counsel at the hearing of this appeal that the two proceedings were instituted pursuant to regulation 19A of the Disciplinary Regulations. The Commissioner, or rather his delegate, in charging the applicant with disciplinary offences was giving effect, as required by section 11(4) of the Complaints Act, to a proposal put to him by the Ombudsman.

3. The first charge against the applicant resulted in a finding of not guilty. It need not be further considered.

4. The second charge against the applicant was a charge of improper conduct in his official capacity. Regulation 18 of the Discipline Regulations provides, so far as is here relevant, as follows:-
   

"18(1) A member .... is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member:

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

(d) is guilty of disgraceful or improper conduct, either in his or her official capacity or otherwise."

1. The particulars provided by the notification of the charge were, relevantly, as follows:-
   

"that you entered and searched premises known as Unit 1/29 Military Road, West Beach, Adelaide in the State of South Australia, on or about 2am on 24 November 1991 at a time when you did not have in your possession a search warrant notwithstanding that you knew that a search warrant issued pursuant to section 10 of the Crimes Act 1914 had previously been obtained for the said search".

1. The facts as found by the Tribunal are essentially uncontentious. On the relevant night the applicant was part of a police operation which involved the surveillance of suspected drug dealers. A police officer other than the applicant apparently saw one of the persons under surveillance pause outside the entrance of Unit 1, 29 Military Road, West Beach. Assuming that the person under surveillance was about to enter Unit 1 for a meeting of suspected drug dealers, the officer made a report. This report formed the basis of a sworn information relied upon by another officer, Sgt Sweeny, for the purpose of obtaining a warrant for the searching of Unit 1, 29 Military Road, West Beach.

2. Sgt Sweeny finalised his sworn information promptly upon receipt of the report with respect to Unit 1 and attended upon a Justice of the Peace in whose presence he swore the information. He obtained from the Justice of the Peace a warrant pursuant to section 10 of the Crimes Act to enter upon and search the premises at Flat 1, 29 Military Road, West Beach.

3. Having obtained the warrant Sgt Sweeny and another officer travelled by car from the home address of the Justice of the Peace to the premises referred to in the warrant. Whilst on the journey they informed the applicant by radio that they had obtained the search warrant. Without waiting for their arrival with the warrant the applicant commenced to execute the warrant. He entered the premises without being in possession of the warrant. The Tribunal found that the "time between entry and Sgt Sweeney arriving with the warrant is unclear but the evidence seems to suggest that it was something in the vicinity of 5-10 minutes."

4. With respect to this charge the Tribunal stated:-
   

"The gravamen of the breach by Sgt O'Connell is not waiting until the warrant had actually arrived before starting the process of execution without any reason. Of course, once the process had started, on his evidence there was a reason to move more quickly but in my view Sgt O'Connell had erred in placing himself in a position whereby he did not have possession of a warrant on entry. There was evidence, and it was argued, that on a number of occasions both Sgt Sweeney and Sgt O'Connell had entered premises without warrants in their possession even though they had been issued. And consequently they did not think such behaviour unlawful. I do not think that such ignorance justifies what happened on this occasion."

1. The appeal was argued on the basis that the above passage involves a finding by the Tribunal that the applicant did not consider his conduct in entering the premises without having the warrant in his possession as unlawful. We accept that the passage should be understood in this way.

2. By his Amended Notice of Appeal the applicant raises two questions of law as follows:-
   

"(a) That the Learned Tribunal erred in finding that the conduct found proved amounted to unprofessional conduct.

(b) That the Learned Tribunal erred in using the civil standard of proof to prove the offences under amendments of 25th November 1992 to Rule 9 of the Complaints (Australian Federal Police) Regulations, when the conduct found proved occurred on or about 24th November 1991, at which time the standard of proof under the said Rule 9 of the said Regulations was "beyond reasonable doubt".

1. It may be noticed first, that the Tribunal did not find that the conduct of the applicant amounted to unprofessional conduct. The charge found proved was of improper conduct in the applicant's official capacity. Secondly it may be noticed that the Amended Notice of Appeal places no reliance upon section 78(b) of the Complaints Act which provides that for the purposes of an appeal to the Federal Court "a reference to a question of law shall be construed as including a reference to the question whether there was sufficient evidence to justify a finding of fact by the Tribunal."

2. The interpretation of the expression "disgraceful or improper conduct" appearing in regulation 18(1)(d) of the Discipline Regulations was considered by a Full Court of this Court in Hardcastle v Commissioner of Police (1984) 53 ALR 593 at p.597. Their Honours said:-
   

"The expression "disgraceful or improper conduct" is of wide import .... We see no warrant for construing the words of para 18(1)(d) otherwise than according to their ordinary and natural meaning, a construction which is consonant with the evident purpose of the paragraph when considered in the context of the Discipline Regulations as a whole."

1. The Court had in an earlier passage identified the object of disciplinary proceedings under the Discipline Regulations as "to protect the public to maintain proper standards of conduct by members of the Australian Federal Police and to protect the reputation of that body".

2. This Court sees no reason to question the decision in Hardcastle v Commissioner of Police referred to above.

3. The finding of the Tribunal in the present case that in the circumstances proved the applicant had acted unlawfully was not challenged. However it was argued on behalf of the applicant that the finding that the applicant had acted unlawfully in executing the warrant before it came into his possession was insufficient alone to support a finding of "improper conduct".

4. What was required, it was contended, was an evaluation analogous to that which would be required were the charge one alleging unprofessional conduct in a legal practitioner. That is, an evaluation of whether the conduct complained of "may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency" (see In re a Practitioner of the Supreme Court (1927) SASR 58 at p 61). It seems to us that although there is some analogy to be drawn between allegations of unprofessional conduct against a legal practitioner and allegations of improper conduct in a police officer, the analogy can be extended too far. The self regulating professions, such as the South Australian legal profession in 1927, set and enforce their own standards of conduct. They provide, as it were, their own benchmarks. By contrast the Australian Federal Police has had a standard of conduct imposed upon it by the Discipline Regulations. In this sense members of the Australian Federal Police are in a situation similar to that of public servants both of the Commonwealth and the States.

5. In Bercove v Hermes (No.3) (1983) 74 FLR 315 the Full Court of this Court gave consideration to s.55(1)(e) of the Public Service Act 1922 as it stood prior to 15 March 1981. At that time s.55(1)(e) read, so far as is here relevant, as follows:-
   

"An officer .... who -

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

(e) is guilty of any disgraceful or improper conduct, either in his official capacity or otherwise; or ........ ........ ........ ........ ........ ........ .... shall be guilty of an offence, and shall be liable to such punishment as is determined upon under the provisions of this section."

1. In Bercove v Hermes (No.3) the Full Court stated at p.324:-
   

'So far as s.55 itself is concerned, the question here is whether it was open to the (Disciplinary Appeal) Board to conclude that the appellant was guilty of "improper conduct, either in his official capacity or otherwise". This is essentially a question of fact and we agree .... that it was at least reasonably open to the Board to make this finding.'

1. The Full Court went on to state that it was "plain enough that there was ample evidence to justify the finding" that the applicant had been guilty of improper conduct. This conclusion was drawn notwithstanding the apparent acceptance by the Court of the applicant's belief in the "legitimacy and propriety" of his actions. The Full Court approved the approach of Morling J at first instance who had considered "the standard of conduct expected of an officer" in the position of the officer under charge. It seems clear, having regard to the context, that His Honour was concerned, principally at least, with the expectations of the public (see Bercove v Hermes (1983) 67 FLR 186 at p.195).

2. The Macquarie Concise Dictionary gives the word "improper" the following meanings:-
   

"1. not proper; not strictly belonging, applicable or right: an improper use for a thing.

2. not in accordance with propriety of behaviour, manners, etc: improper conduct.

3. unsuitable or inappropriate, as for the purpose or occasion: improper tools.

4. abnormal or irregular."

1. The New Shorter Oxford English Dictionary includes in its treatment of the word "improper" the meaning "unbecoming, unseemly, indecorous". In our view the word "improper" appearing as part of the expression "improper conduct" in regulation 18(1)(e) of the Discipline Regulations is used in the second sense of the Macquarie Concise Dictionary definition set out above. That is, we conclude that regulation 18(1)(e) is directed at conduct which may be regarded as lacking propriety or as unbecoming or unseemly in the circumstances. We do not regard the regulation as seeking to embrace in addition conduct which is merely technically irregular.

2. In Commissioner of Police v Sloane (an unreported decision of Jenkinson J sitting as the Federal Police Disciplinary Tribunal - 25 September 1985) His Honour was required to consider whether it was an element of the disciplinary offence of "acting in a manner unbecoming a member" that the member charged appreciated at the time when the relevant acts were done that they would be regarded by reasonable persons as unbecoming a member of the Australian Federal Police. His Honour concluded that it was not. However he went on:-
   

"The mental state of a person charged may, however, have an influence on the judgment which the Tribunal is to make as to whether the acts done should be found to be acting in a manner unbecoming a member of the Australian Federal Police. And that will be so, in the Tribunal's opinion, whether that judgment is formed by reference to what the Tribunal considers reasonable members of the community would regard as unbecoming conduct or by reference merely to its own opinion of what is unbecoming. No one, the Tribunal supposes, would characterize as conduct unbecoming a member of the Australian Federal Police the drunken behaviour of a uniformed policeman in a public place if he had become grossly intoxicated, without any fault on his part, by drinking a beverage into which an intoxicating substance had been introduced without his knowledge".

1. We agree with His Honour.

2. By analogy, it seems to us that, for example, were a police officer to take certain actions in accordance with a reasonably held belief, shared by other informed officers, that the action was legitimate, the actions would not be characterised as "improper conduct" by reason only of a later judicial determination that actions of the kind were illegitimate.

3. However we do not consider that it is an element of the charge of improper conduct that the member charged should be aware that the conduct in question would be regarded as improper in the sense of lacking in propriety or unbecoming or unseemly.

4. The Tribunal in this case considered it "obvious that the warrant must be issued and in possession when entry is made". It found that the applicant took a "chance" in acting as he did and that the applicant's belief in the lawfulness of his conduct amounted to "ignorance". The Amended Notice of Appeal does not seek to challenge the sufficiency of the evidence with respect to these findings of fact.

5. In our view, having regard to the above findings of fact, it was reasonably open to the Tribunal to conclude that the applicant was guilty of improper conduct in his official capacity.

6. We turn to the second question of law raised by the Amended Notice of Appeal.

7. At the time of the occurrence of the incident upon which the disciplinary proceedings were based (i.e. 24 November 1991) the Complaints (Australian Federal Police) Regulations provided by regulation 9 as follows:-
   

"The Disciplinary Tribunal shall not find that a member is guilty of a breach of discipline unless the Tribunal is satisfied beyond reasonable doubt that the member is so guilty".

1. An amendment to rule 9 came into operation on 5 March 1992, but this amendment did not change the onus of proof.

2. However a further amendment which came into operation on 25 November 1993 did change the onus of proof. Thereafter rule 9 read as follows:-
   

"The standard of proof required in proceedings before the Disciplinary Tribunal is proof on the balance of probabilities".

1. The notifications given to the applicant of the institution of the disciplinary proceedings are dated 28 October 1993. The hearing of the proceedings began on 7 February 1994 and concluded on 11 May 1994.

2. The Tribunal in its reasons stated that 'the appropriate standard of proof in the present matters is on "the balance of probability" and I have decided these matters on that basis'. By his Amended Notice of Appeal the applicant contends that the Tribunal erred in adopting the civil standard of proof.

3. Reliance is placed on behalf of the applicant on the common law rule that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. Statutes dealing with procedures are not regarded as falling within the common law rule. As expressed by the Full Court of the High Court in Rodway v The Queen (1990) 169 CLR 515 at p.518 "where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption".

4. The issue is whether rule 9 of the Complaints (Australian Federal Police) Regulations deals with matters of procedure alone.

5. In Newell v The King (1936) 55 CLR 707 the High Court held that an alteration to the criminal law which abolished the requirement for a unanimous verdict and provided for the decision of a majority of ten jurors after two hours' deliberation had no operation with respect to a trial which had technically begun at a time before the alteration to the law was effected. This case is of particular significance because it was concerned with an issue closely connected with standard of proof.

1. The decision in Newell v The King was considered by the High Court in a unanimous judgement delivered in Rodway v The Queen. Rodway's Case concerned the repeal in Tasmania of a provision in the Criminal Code which provided that "No person shall be convicted of any crime under the provisions ... of this chapter ... on the evidence of the person in respect of whom the crime is alleged to have been committed ... unless the evidence of such person is corroborated in some material particular by other evidence implicating the accused". Upon the repeal of this provision a new section was enacted which provided:-
   

"(1) At the trial of a person accused of a crime under Chapter XIV or XX, no rule of law or practice shall require a judge to give a warning to the jury to the effect that it is unsafe to convict a person on the uncorroborated evidence of a person against whom the crime is alleged to have been committed.

(2) A judge shall not give a warning of the kind referred to in sub-section (1) unless satisfied that the warning is justified in the circumstances".

1. The crimes of which Rodway had been convicted in Tasmania had been committed before the alteration to the law referred to above. Nonetheless at his trial, which occurred after the alteration, the trial judge had applied the new section. His ruling was upheld by the Court of Criminal Appeal. An appeal to the High Court was dismissed in a unanimous decision. The alteration to the law was held by the High Court to be procedural in character and not to affect existing rights or obligations. The Court expressly found that Attorney-General's Reference No.1 of 1988 (1988) 49 SASR 1 was wrongly decided. In that case King CJ, with whom Millhouse J agreed, stated at p.6:-
   

"There is a sense in which laws relating to the competence of witnesses and the quantum of evidence required to prove guilt can be said to deal with matters of procedure. Where such laws, however, provide substantial protections against wrongful conviction, they are treated by the law as conferring substantive rights upon citizens and as going beyond the realm of mere procedure."

1. Mohr J in that case went further and found that the repealed provision, which was to the effect that an accused who denied the offence with which he or she is charged on oath could not be convicted on the uncorroborated evidence of a child, provided a defence to a charged person and its repeal affected vested rights adversely. We conclude that following the decision in Rodway's Case neither of the above approaches may be regarded as good law.

2. As to Newell v The King, the High Court in Rodway's Case, as it seems to us, confined its authority to the narrow circumstance in which the accused person had joined issue with the Crown upon the technical commencement of the trial and placed himself in jeopardy of conviction upon the unanimous verdict of twelve, not a majority of ten. The Court went on to say at p.522:-
   

"Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon CJ in Maxwell v. Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms: Potter v. Minahan; Baker v. Campbell; Sorby v. The Commonwealth; Hamilton v. Oades."

1. Having regard to the decision of the High Court in Rodway v The Queen it seems plain that the Tribunal in this case was right in determining that the appropriate standard of proof to be applied by it was the balance of probabilities.

2. The appeal is dismissed with costs.