Scanes, Warren David v The Commissioner of Police

[1984] FCA 191

Re: WARREN DAVID SCANES and KELVIN GEORGE THORN
And: THE COMMISSIONER OF POLICE
ACT Nos. G.96, 97, 98 and 99 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
McGregor J.
Neaves J.

CATCHWORDS

Administrative law - appeal from Federal Police Disciplinary Tribunal - nature and exercise of jurisdiction in review of tribunal's decision - "sufficient evidence" to justify findings of fact.

Complaints (Australian Federal Police) Act 1981 ss. 71, 72, 74, 75, 76, 77, 78, 79

Australian Federal Police Act 1979

Federal Court Act 1976 ss. 19, 20, 24

Australian Federal Police (Discipline) Regulations, Reg. 18

Federal Court Rules 0.53, 0.61

HEARING

CANBERRA

#DATE 10:7:1984

ORDER

1. The appeal be dismissed.

2. The applicant pay the respondent's costs of the appeal.

3. The appeal be dismissed.

4. The applicant pay the respondent's costs of the appeal.

5. The appeal be dismissed.

6. The applicant pay the respondent's costs of the appeal.

7. The appeal be dismissed.

8. The applicant pay the respondent's costs of the appeal.

JUDGE1

On 9 December 1983, the Federal Police Disciplinary Tribunal ("the Disciplinary Tribunal"), constituted by its President, Kelly J., found the applicant Scanes guilty of two disciplinary offences under Reg. 18, Australian Federal Police (Discipline) Regulations, ("the Regulations"). On the same day the Disciplinary Tribunal found the applicant Thorn guilty of two offences under Reg. 18. On 23 December 1983 the Disciplinary Tribunal imposed penalties on each applicant with respect to each of those offences. By notice of appeal dated 19 December 1983 each of the applicants appealed against the findings made against them. The four appeals came on for hearing on 4 May 1984 before a Full Court of the Federal Court of Australia. With the consent of the parties, the four appeals were heard together.

Each applicant is a member of the Australian Federal Police and thus is a member within the meaning of that word in the Complaints (Australian Federal Police) Act 1981 ("the Act"). Under the Regulations, which are made pursuant to the Australian Federal Police Act 1979, the Commissioner of Police is empowered to institute proceedings against a member of the Australian Federal Police in relation to a breach of discipline. Where such proceedings are instituted, they "shall be heard and determined by the Disciplinary Tribunal"; see s.67 of the Act.

The Commissioner instituted a number of proceedings against the applicants, including the four proceedings the subject of these appeals, in relation to breaches of discipline. The parts of Reg. 18 relevant for the purposes of this appeal are set out:

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

(a). . .

(c) is negligent or careless in the discharge of his duties;

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

. . .

(h) is found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country."

The applicant Scanes was found guilty of one disciplinary offence under paragraph (d) of Reg. 18(1) and one disciplinary offence under paragraph (c) of Reg. 18(1). The applicant Thorn was found guilty of two disciplinary offences under paragraph (d) of sub-reg. 18(1). After the notices of appeal had been filed, the Disciplinary Tribunal imposed penalties on the applicants; see sub-section 67(3) of the Act and Reg. 22. The penalties so imposed are irrelevant for the purposes of the appeals.

Division 5 of Part VI of the Act (comprising sections 78 - 81 inclusive) contains provisions relating to appeals to the Federal Court of Australia from decisions of the Disciplinary Tribunal. Under s.79, a party to a proceeding before the Disciplinary Tribunal "may appeal to the Court, on a question of law, from a decision of the Tribunal in that proceeding". The appeal is to be constituted in such manner as is prescribed by the Federal Court Rules; see paragraph (b) of sub-section 79(2). The Court has jurisdiction to hear and determine the appeal and that jurisdiction is to be exercised by the Court constituted as a Full Court; see sub-section 79(3). It must be remembered that despite the use of the word "appeal" in s.79 and that the appeal is heard and determined by a Full Court, the Court, in hearing and determing the appeal, is exercising original jurisdiction. The Court is not exercising appellate jurisdiction since the appeal is not from a court; see s.24 Federal Court of Australia Act 1976. For the nature of the original jurisdiction of the Court in the present case, see sections 19 and 20 Federal Court of Australia Act and s.79 Complaints (Australian Federal Police) Act. In addition to the matters already referred to, s.79 contains other provisions relating to the orders that can be made by the Court. Finally, reference is made in passing to the provisions of s.81.

As this summary of the provisions of Division 5 of Part VI of the Act illustrates, the nature of an appeal to the Court from a decision of the Disciplinary Tribunal is very similar to the nature of an appeal to the Court from a decision of the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975; see sections 44, 45 and 46 of that Act. For that reason, decisions of the Court relating to appeals from the Administrative Appeals Tribunal are relevant in determining the nature of appeals from the Disciplinary Tribunal. There is, however, one difference of importance between the nature of those appeals. Paragraph (b) of s.78 Complaints (Australian Federal Police) Act provides:

"78. In this Division, unless the contrary intention appears -

(a) ...

(b) 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; ..."

There is no corresponding provision contained in the Administrative Appeals Tribunal Act.

Before departing from a consideration of the similarity between appeals under these two Acts, reference should be made to the similar statutory powers and duties conferred and imposed upon the two Tribunals; sections 71 and 72 Complaints (Australian Federal Police) Act confer a number of powers upon the Disciplinary Tribunal. Sections 74, 75 and 77 relate to procedures and protection of members. Section 76 is of importance. Under sub-section (1), and subject to the Act and Regulations made under sub-section (4), the procedures of the Disciplinary Tribunal are within the discretion of the Tribunal. Sub-sections (2) and (3) are set out:

"76. (2) A proceeding before the Disciplinary Tribunal shall be conducted with as little formality and technicality and with as much expedition as the requirements of this Part and a proper consideration of the matter before the Tribunal permit.

(3) The Disciplinary Tribunal is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."

Sub-section (5) requires the Disciplinary Tribunal, in proceedings heard by it pursuant to s.67 to "give reasons in writing for its decision and those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based".

The corresponding provisions applicable to the Administrative Appeals Tribunal are contained in sections 32, 33, 35, 40 and 43 Administrative Appeals Tribunal Act. Under s.43, the Administrative Appeals Tribunal is required to give reasons either orally or in writing for its decisions and may be required to give its reasons in writing. When the reasons are given in writing they "shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based".

Under 0.61, Federal Court Rules, the provisions of 0.53 "shall apply mutatis mutandis to an appeal to the court on a question of law from the Disciplinary Tribunal made pursuant to s.79 of the Complaints (Australian Federal Police) Act. Order 53 relates to matters under the Administrative Appeals Tribunal Act. Under 0.53, r.2 an appeal to the Court from the Administrative Appeals Tribunal is instituted by filing a notice of appeal in accordance with Form 55A in the Schedule of the Rules. That form requires that each question of law raised on the appeal must be specified. The notices of appeal filed in the four appeals presently before the Court did not specify the questions of law raised on the appeals. This defect was drawn to the attention of counsel for the applicants at the commencement of the hearing of the appeals. Thereafter, the applicants were given leave to amend each of the notices of appeal by inserting in each of them the following paragraph:

"2. Questions of Law Raised on the Appeal are:-

(i) Whether the Tribunal could entertain a complaint alleging as a disciplinary offence conduct which amounted to a criminal offence before a person the subject of such complaint has been charged with and convicted of such an offence.

(ii) Whether the evidence before the Tribunal was sufficient to justify the findings of fact made by the Tribunal.

(iii) Whether the decisions of the Tribunal should be set aside on the grounds that the same are and were unsafe and unsatisfactory."

Question 2(i) was included to protect the interests of the applicants if the matter should go further. The question raises an issue with respect to the three findings based on paragraph (d) of Reg. 18(1). The facts giving rise to the findings of being guilty of disgraceful or improper conduct could support convictions by a court of an offence against a law of the Australian Capital Territory, and if convictions were entered, those convictions could constitute disciplinary offences under paragraph (h) of Reg. 18(1). The question seeks to raise also the issue of whether a member can be found guilty of a disciplinary offence under paragraph (d) when the same facts show that an offence against a law of the Territory might have been committed but there exists no finding of guilt by a court in relation to such an offence. In Hardcastle v. Commissioner of Police, Federal Court of Australia, 13 April 1984, unreported, a Full Court constituted by Bowen C.J., Gallop and Lockhart J.J. held that there was no substance in a submission that the Disciplinary Tribunal had no jurisdiction to make a finding of guilty under paragraph (d) where the same facts constituted an offence against a law of the Territory. In the course of its joint judgement, the Court said:

"In our opinion there is no substance in this submission. It misconceives the character of disciplinary proceedings in general and under the Discipline Regulations in particular. The object of disciplinary proceedings under the Disciplinary Regulations is 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. The object of disciplinary proceedings is not to punish (see Harvey v. Law Society of New South Wales (1975) 49 A.L.J.R. 362 per Barwick C.J. at p.364) or to exact retribution (see Ex parte Attorney-General (Cth); re a Barrister and Solicitor (1972) 20 F.L.R. 234 per Fox, Blackburn and Woodward J.J. at p.244). The expression 'disgraceful or improper conduct' is of wide import; sometimes it will and, at other times will not, encompass conduct which is also criminal conduct. 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. There is no room for the application of what is sometimes misleadingly called the principle of double jeopardy in this case. If the appellant were charged with, and convicted of, the same unlawful assaults as are the subject of the disciplinary offences he would not face double jeopardy or be punished twice for the same offence. He would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The two proceedings are essentially different in character and result." (See p.6.)

In any event, the conviction of a member by a court of an offence against a law of the Territory itself constitutes a disciplinary offence under Reg. 18(1).

This Court is required to follow the decision in Hardcastle v. Commissioner of Police. It follows, therefore, that the Disciplinary Tribunal had jurisdiction to entertain the proceedings against the applicants based upon paragraph (d) of Reg. 18(1).

Question 2(iii) is based upon what was said in Chamberlain v. R. (1984) 51 A.L.R. 225 per Gibbs C.J. and Mason J. at p.234, namely:

"For these reasons, in our opinion, the Full Court of the Federal Court, on appeal from the Supreme Court of a Territory, has the power and duty to set aside the verdict of a jury in a case where a miscarriage of justice has occurred, including a case where it would be unsafe or dangerous to allow the verdict to stand. The decision to the contrary in Duff v. R ((1979 28 A.L.R. 663) was, in our respectful opinion, erroneous."

In that case and in that passage the High Court was considering the nature of the appellate jurisdiction of the Federal Court of Australia. The principle so enunciated has no application where the Federal Court is exercising original jurisdiction in hearing and determining an appeal on a question of law from an administrative tribunal. In matters of that type, where an applicant is contending that the evidence and material before a tribunal does not support the finding made, the applicant must establish that the evidence and material before the tribunal was such that no tribunal properly directing itself as to relevant matters of law could have made the finding it did. The true position is stated in Collins v. Minister for Immigration and Ethnic Affairs (1981) 58 F.L.R. 407 per Fox, Deane and Morling JJ. at pp.410-411:

"A number of authorities was cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonble decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence, belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses (see s.33(1)(c) of the Administrative Appeals Tribunal Act 1975). An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based."

Having regard to the provisions of paragraph 78(b) of the Act, in the present case matters relevant to deciding whether the decision of the Disciplinary Tribunal should be set aside on the ground that the same are and were unsafe and unsatisfactory may be relevant, even though the standard of proof may be different. It is appropriate, however, that those matters should be considered as if they arose under Question 2(ii).

The question of law raised by Question 2(iii), apart from its relevance in Question 2(ii), can have no application to an appeal from the Disciplinary Tribunal.

Question 2(ii) is based upon the provisions of paragraph 78(b) of the Act. That paragraph has been set out earlier in these reasons. Any apparent conflict between sub-section 76(1) under which the Disciplinary Tribunal is not bound by any rules of evidence and the expression "sufficient evidence" in paragraph 78(b) does not arise in these appeals since the Disciplinary Tribunal made its findings on evidence that would have been admissible in a court of law.

In accordance with the requirements of sub-section 76(5) of the Act, the Disciplinary Tribunal gave "reasons in writing for its decision" and those reasons included "its findings on material questions of fact and a reference to the evidence . . . on which those findings" were based.

The President of the Tribunal gave long and careful reasons. He made detailed reference to the evidence before him. He stated his opinion on the credibility of witnesses. He was meticulous in his assessment of the evidence and of the witnesses. He stated and applied the correct legal principles relating to the onus of proof in matters of this kind. He set out his findings on material questions of fact and to the evidence on which those findings were based. He made the findings of guilty which are the subject of these appeals. He made findings of not guilty with respect to other charges against the applicants under Reg. 18(1).

For present purposes, it is sufficient to say that the facts giving rise to the appeals arose out of events which occurred in the early hours of the morning of 16 July 1982 when the applicants, in the course of their duties, attended an incident involving a motor vehicle in Commonwealth Avenue, Parkes. Arising out of those events, the applicant Scanes was found guilty of the two offences referred to already. In substance, the ultimate findings of fact constituting the first offence were that he seized the driver of the vehicle and "pulled him out of his motor vehicle and then did strike him about the head with his hand". In substance, the ultimate findings of fact constituting the second offence were that having required the driver "to produce for inspection his licence to drive a motor vehicle, and" the driver "having so produced his licence, he (Scanes) failed to ensure that the said licence was returned to him".

Arising out of the same events, the applicant Thorn was found guilty of the two offences referred to already. In substance, the ultimate findings of fact constituting the first offence were that he removed "two flagons from a vehicle owned by" the driver "and then did break one of the said flagons". In substance, the ultimate findings of fact constituting the second offence were that he tore "two pages from a pocket diary owned by" the driver.

In his submissions, counsel for the applicants made a detailed examination of the evidence before the Disciplinary Tribunal. He contended that in a number of respects the Tribunal should not have accepted parts of the evidence of certain witnesses. He argued that the findings of guilt were against the evidence and the weight of the evidence. He contended that the Tribunal failed to take into account reasonable, in fact probable, hypotheses consistent with the innocence of the applicants. He submitted that all these matters resulted in an error of law being made in the findings of guilt.

Counsel submitted that under paragraph 78(b) of the Act a question of law included a question of whether there was "sufficient evidence to justify a finding of fact by the Tribunal". He contended that this statutory provision was intended to ease the strict requirements applied to appeals from the Administrative Appeals Tribunal to the Federal Court. He argued that this statutory provision made an applicant's task less arduous when appealing from a decision of the Disciplinary Tribunal. It becomes necessary, therefore, to construe the relevant part of paragraph 78(b).

There is much force in the submission that paragraph 78(b) was intended to ease the strict requirements applicable to appeals to the Federal Court from the Administrative Appeals Tribunal. In enacting paragraph 78(b), the Legislature must have been aware of those strict requirements and paragraph 78(b) must be construed accordingly.

The words "sufficient evidence" have been considered in many cases, but normally where they appeared in an enabling statute providing that specified material shall be "sufficient evidence" to establish a stated fact. The question in those cases normally has been whether that material is to be treated as conclusive or not; see In re Duce & Boots Cash Chemists (Southern), Limited's Contract (1937) 1 Ch. 642 per Bennett J. at pp.649-50. Those authorities do not assist in the present case where an object is stated, namely "a finding of fact", and the question is whether there was sufficient evidence to justify that object.

In the context in which it appears, a meaning must be given to the words "a finding of fact". The question is, do those words describe the ultimate finding of fact made by the Disciplinary Tribunal or do they refer to each and every primary finding of fact necessarily considered by the Tribunal and upon which the ultimate finding of fact rests. The relevant processes to be applied in determining facts by a jury are discussed in Chamberlain's case by Gibbs C.J. and Mason J. at pp.234-40, a passage that should be read. That passage relates to a verdict of a jury which is not required to give reasons in writing for its verdict, nor is it required to state "its findings on material questions of fact and a reference to the evidence . . . on which those findings" were based. That passage relates also to criminal trials based on circumstantial evidence. That passage refers to court procedures, but by analogy can have application to an administrative body. That passage is dealing with the criminal onus of proof, but by analogy has application where the civil onus applies. At pp.237-8 the following passage appears:

"It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines (1952) 85 CLR 352 at 358; and Barca v. R (1975) 133 CLR 82 at 104). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd (1940) AC 152 at 169, that 'there can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish' is obviously as true of criminal as of civil cases."

Further, under sub-section 76(5) the Disciplinary Tribunal, in giving its reasons for decision, set out "its findings on material questions of fact" as well as the evidence on which those findings are based. In the present case, in his reasons for decision, the President said in relation to the first offence alleged against the applicant Scanes, "I am satisfied that" the charge "has been made out against Sergeant Scanes". In relation to the second offence, the President said, "I find" the charge "proved against Sergeant Scanes". In relation to the first offence alleged against the applicant Thorn, the President said, "I find Constable Thorn guilty of the disciplinary offence in relation to" the driver's "diary or notebook". In relation to the second offence, the President said, "I find" the charge "proven to the extent of the taking of the two flagons and the deliberate breaking of one". The Disciplinary Tribunal then issued formal documents each headed "Findings". In each of those documents the words "The Tribunal Finds That" were followed by a statement that the relevant applicant was guilty of the disciplinary offence alleged in that, there then being set out the ultimate findings of fact which constituted the conduct amounting to the disciplinary offence. The applicants appeal from those findings.

The questions of law raised by the appeals are whether there was sufficient evidence to justify those findings of fact. In the course of submissions counsel examined the evidence directed to each primary fact in an attempt to establish that some of those findings of primary fact should not have been made. This is a course which should not be adopted, as is illustrated by the opinions expressed in Chamberlain's case. For instance, in the present case, the Disciplinary Tribunal made a large number of primary findings of fact, many of which were not relevant to the ultimate findings of fact. The absence of sufficient evidence to justify some of the primary findings of fact which were not relevant to the ultimate findings of fact could not effect the ultimate findings of fact.

The word "sufficient" has many different meanings. Among its ordinary meanings are "of a quality, extent or scope adequate to a certain purpose or object", and "of things"; "of adequate quality . . . substantial". The word "sufficient" imports a relative concept. In the phrase "sufficient evidence" the question is whether that evidence is of a quality, extent or scope adequate to justify the findings of guilt by the Disciplinary Tribunal. In paragraph 78(b) the words "to justify" have the meaning of "to prove". In this regard the degree of proof required becomes relevant.

In the present appeals the question of law raised by Question 2(ii) is whether the evidence before the Disciplinary Tribunal was of adequate quality, intent or scope to prove the ultimate findings of fact made by the Tribunal. This does not mean that the Court is to substitute its views on the facts for those of the Disciplinary Tribunal. This does not mean that this Court is to decide whether it would be unsafe or dangerous to allow the ultimate findings of fact to stand. In Chamberlain's case, Gibbs C.J. and Mason J., in part of the passage already referred to, said at pp.234-5:

"In the recent case of Whitehorn v. R (1983) 57 ALJR 809 the court again affirmed that a verdict may be set aside as unsafe and unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted. Dawson J (with whom Gibbs CJ and Brennan J expressed general agreement on this aspect of the case) said at 821 that the question which an appellate court has to decide when called on to consider whether a verdict ought to be set aside because it would be unsafe, unjust or dangerous to allow it to stand is 'whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'."

To adapt that passage, what the Federal Court must do when considering an appeal from the Disciplinary Tribunal when the question of law is whether there was sufficient evidence to justify the findings of fact made by the Tribunal is to determine whether, upon the whole of the evidence before the Tribunal, it was open to the Tribunal on the balance of probabilities, to make the findings of fact challenged. In this respect, the phrase "balance of probabilities" is used in the sense described in the judgment of Dixon J. in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336, and in this respect the following short extract at pp.361-2 is set out from the much longer passage dealing with this matter:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

In the present case it is not necessary to make any detailed reference to the reasons for decision by the Disciplinary Tribunal nor to the evidence contained in the transcript. Questions of credibility of witnesses played a large part in the assessment of evidence by the Tribunal. From a consideration of the whole of the evidence contained in the transcript and from the reasons for decision, it is manifestly clear that it was open to the Disciplinary Tribunal to make the ultimate findings of fact which it did. Put another way, there was sufficient evidence to justify the findings of fact made by the Tribunal.

Finally, it should be noted that there was no suggestion made by counsel for the applicants that the ultimate findings of fact made by the Disciplinary Tribunal could not in law constitute the disciplinary offences for which the applicants were found guilty.

Each of the four appeals should be dismissed with costs.

JUDGE2

WARREN DAVID SCANES (Sgt. Scanes) and KELVIN GEORGE THORN (Const. Thorn) have appealed against certain decisions of the President of the Federal Police Disciplinary Tribunal given on 9 December 1983. The Tribunal found Sgt. Scanes guilty of disciplinary offences set out below, viz. -

"That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did seize Danilo RABER and pull him out of his motor vehicle and then did strike him about the head with his hand."

"That he was careless in the discharge of his duties contrary to the provisions of paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, having required Danilo RABER to produce for inspection his licence to drive a motor vehicle and the said Danilo RABER having so produced his licence, he failed to ensure that the said licence was returned to him."

Const. Thorn was found guilty of the following disciplinary offences

"That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did remove 2 flagons from a vehicle owned by Danilo RABER and then did break one of the said flagons."

"That he was guilty of improper conduct in his official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about 16 July 1982, on the western side of Commonwealth Avenue between the Albert Hall and Commonwealth Avenue Bridge, Canberra in the Australian Capital Territory, he did tear two pages from a pocket diary owned by Danilo RABER."

Pursuant to the Australian Federal Police Act 1979 there have been made the Australian Federal Police (Discipline) Regulations. In Division 2 of Part II under the heading "Disciplinary Offences" reg.18, so far as is relevant, reads -

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

. . . .

(c) is negligent or careless in the discharge of his duties;

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

. . . .

(h) is found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country.

(2) . . . . "

The Disciplinary Tribunal was established by the Complaints (Australian Federal Police) Act 1981 (the Complaints Act) s.54(2). Section 67 of the Complaints Act provides that where proceedings are instituted by the Commissioner of Police against a member in respect of a breach of discipline under the prescribed regulations i.e. those made under the Australian Federal Police Act 1979 referred to above (s.3(4) ibid and reg.3 of the Complaints (Australian Federal Police) Regulations), those proceedings shall be heard and determined by the Disciplinary Tribunal. Section 76 of the Complaints Act, so far as relevant, reads -

"(1) In a proceeding before the Disciplinary Tribunal, the procedure of the Tribunal is, subject to this Part, and to the regulations, within the discretion of the Tribunal.

(2) A proceeding before the Disciplinary Tribunal shall be conducted with as little formality and technicality and with as much expedition as the requirements of this Part and a proper consideration of the matter before the Tribunal permit.

(3) The Disciplinary Tribunal is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

. . . . "

Where the Disciplinary Tribunal in such proceedings finds a member guilty of a breach of discipline and the Tribunal is constituted by the President, it may impose certain penalties referred to in s.67 of the Complaints Act. That is the course which has been followed here. Section 79 in Division 5 of Part VI of the Complaints Act provides for an appeal to the Federal Court of Australia on a question of law. Section 78(b) reads -

"(b) 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;"

The Court in such circumstances constituted as a Full Court has jurisdiction to hear and determine the appeal, (s.79(3)); though in so doing the Court will be exercising original jurisdiction. This Court is thus seized with these appeals. The Court shall, in determining them, make such order as it thinks appropriate, s.79(4).

The facts out of which this matter arose concerned events which took place early in the morning of 16 July 1982 in Canberra Avenue in the vicinity of Albert Hall and Commonwealth Avenue Bridge, Canberra. After a report from a taxi driver that a vehicle had been stationary in that area for some time, a mobile police patrol was directed to investigate. The first police vehicle at the scene (with a radio call sign "Hotel 14") was one in charge of Constables Crampton and Cantle. They found Danilo Raber in it in the driver's seat. Shortly after, a second police car ("Hotel 8") in charge of the two applicants arrived whereupon the first vehicle left. What occurred thereafter, to which more detailed reference is made later, gave rise to the charges before the Disciplinary Tribunal.

The learned President noted that through their solicitors each of the officers promptly denied all of the charges against them.

After the hearing before this Court commenced it was pointed out that the Notices of Appeal filed on behalf of each applicant were deficient in that they did not set out, as form 55A in the First Schedule to the Federal Court Rules (made applicable by Order 53 r.2 and Order 61 r.2) requires, the questions of law raised in the appeals. Counsel for the applicants sought and was granted leave to file amended Notices of Appeal.

Each of the amended Notices of Appeal set out the following as the questions of law raised in the appeal -

"(i) Whether the Tribunal could entertain a complaint alleging as a disciplinary offence conduct which amounted to a criminal offence before a person the subject of such complaint has been charged with and convicted of such an offence.

(ii) Whether the evidence before the Tribunal was sufficient to justify the findings of fact made by the Tribunal.

(iii) Whether the decisions of the Tribunal should be set aside on the grounds that the same are and were unsafe and unsatisfactory."

The amended Notices of Appeal also stated the Grounds of Appeal relied upon. It is unnecessary to set them out in full. It is sufficient to note that the applicants contend that certain findings of the learned President were against the evidence and the weight of the evidence, that certain evidence had been wrongly disregarded, that the evidence of Danilo Raber was unsafe and unreliable, that irrelevant matters had been considered and that relevant matters had not been sufficiently taken into account.

The applicants were represented by Mr. Higgins. He conceded that on the evidence a finding of guilty against Sgt. Scanes on the second offence relating to failing to ensure the driver's licence was returned to Danilo Raber was open: that he did not wish to make any submission concerning it.

Arguments advanced on behalf of both applicants included that the decisions should be set aside because they were so much against the evidence and the weight of the evidence as to be "unsafe and unsatisfactory" (or unsafe or dangerous) in the circumstances. Counsel cited House v.R. (1936) 55 C.L.R. 499: Chamberlain v.R., (1984) 51 ALR 225 per Gibbs C.J. and Mason J. at p.234.

In summary it was submitted that the decisions and findings of the learned President were so much against the evidence and the weight of the evidence and so failed to take account of reasonable and, indeed, probable hypotheses consistent with innocence as to make it erroneous in law for him to have decided as he did. Factors which were advanced in support of this argument were his failure to give due weight to certain medical evidence, of discrepencies in Danilo Raber's evidence both internally and when compared with other witnesses. It was contended that Danilo Raber was quite plainly making a false accusation and had in all probability irritated a pre-existing minor injury to cause some bleeding so that he might blame police for that injury. It was contended that to reject that theory as quite "bizarre" was an error. Further, in support of the ground related to findings being against the evidence, it was submitted that the learned President should not have placed reliance on the evidence of Mr. Pelle supporting a conclusion that a certain bruise on the face of Danilo Raber was caused in the early hours of 16 July 1982; that this was inconsistent with the onus of proof being applied in the absence of any evidence as to how the bruise examined by Dr. Smythe on that day would have appeared on 15 July to those lay witnesses who saw Raber; so it was a reasonable hypothesis that Raber's injuries had been received before he was spoken to by Police at the relevant time; and that bleeding observed after Sgt. Scanes and Const. Thorn saw him was self induced. Counsel referred us in detail to the evidence pointing to what he regarded as discrepant and improbable. He referred to various conflicting testimony which we do not find it necessary to repeat here.

Counsel for the respondent submitted that neither the Grounds of Appeal nor the alleged "Questions of Law" disclosed any arguable ground of law; that what had been put forward on behalf of Sgt. Scanes and Const. Thorn was no more than factual argument and thus not one for consideration by this Court. He referred to Collins v. The Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598.

Further, said counsel, the purpose of a Disciplinary Tribunal was not to punish but was to protect the public; so it may discipline on evidence e.g. even hearsay evidence which could not be used in a prosecution in a criminal court. He submitted that primary fact finding could and did in this matter depend on credibility. He referred to Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370: Wheat v. E. Lacon & Co. Ltd. (1966) A.C. 552.

An examination of the Reasons for Decision by the learned President showed that he analysed the facts and set them out in great detail. He referred to the degree of proof necessary in these matters, and in terms which counsel accepted as appropriate. The approach taken by the learned President was clearly correct: cf. Ex parte Attorney-General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 F.L.R. 234 and Scanes v. Commissioner of Police (1974) 3 A.C.T.R. 20 at pp.26-7. He expressed himself as satisfied or otherwise made relevant findings of fact (which have been numbered for convenience) including -

(i) When Mr. Raber was first approached by the crew of Hotel 14 he was asleep.

(ii) The typed transcript of a tape recording wireless traffic between Police Headquarters, Canberra, and Mobile Patrols was accurate.

(iii) There was a practice that Mobile Patrols should indicate their location from time to time.

(iv) When the witness, Mrs. O'Rourke, referred to bruising, she meant that which was visible on the morning of Friday 16 July 1982.

(v) Mrs. O'Rourke was a truthful witness though she had some difficulties with English.

(vi) Mr. Raber's car was parked initially adjacent to the Albert Hall.

(vi) The statements made by Const. Thorn and Sgt. Scanes in their statements that the location at which they attended was respectively adjacent to the Canberra Hotel and opposite the Canberra Hotel was not acceptable.

(viii) There was no reason to doubt any of the evidence of Constables Crampton, Cantle, Kent and Smeltink and Station Sergeant O'Doyle.

(ix) The evidence given by Mr. Nicholl, Mrs. O'Rourke, Mr. Pelle and Dr. Smythe was generally accurate.

(x) The statement made by Acting Chief Inspector Craft was true.

The learned President set out a number of circumstances concerning which he was satisfied, viz -

(a) The initial location of Mr. Raber's vehicle at a point near the Albert Hall south of the Commonwealth Avenue Bridge and in front of the third tree in the line of trees south of that bridge shown in photographs Nos.7 and 8 in Exhibit C.

(b) At 2.48 a.m. a taxi driver reported the presence of Mr. Raber's vehicle at that location to the police.

(c) At 2.50 a.m. Sergeant Scanes in Hotel 8 was requested to look into the matter. Hotel 8 was then at the far end of Canberra Avenue near H.M.A.S. Harman.

(d) About a minute later the crew of Hotel 14 became available for further tasks.

(e) Immediately or almost immediately thereafter Sergeant Scanes requested his Headquarters to assign the crew of Hotel 14 to the investigation.

(f) Whatever supervisory role Sergeant Scanes had on that morning it was not a role which prevented him carrying out such investigations as that into the silent alarm at the "Rules Club, Canberra Avenue, Manuka".

(g) There was no suggestion in the record of wireless traffic that the message concerning the car at the Albert Hall was directed to Sergeant Scanes as supervisor because all other cars were attending to messages. (That is not to say that what Sergeant Scanes said in his statement. Exhibit K, concerning that may not in fact have been correct).

(h) When Constables Crampton and Cantle left the scene by not later than 3.02 a.m. Mr. Raber was still in his car.

(i) When Constables Crampton and Cantle left the scene Mr. Raber had no sign of blood on his face.

(j) At all material times Mr. Raber was under the influence of intoxicating liquor but not to such a degree that he could not remember any of the incidents which took place; witness his recollection of the inspection of the exterior of his car, an inspection to which Constable Thorn also deposed.

(k) It is most likely that Mr. Nicholl, having left Colbee Court, Phillip at 3.20 a.m., reached the point north of Commonwealth Avenue Bridge where he first saw Mr. Raber by not later than 3.35 a.m. and probably as early as 3.30 a.m.

(l) Constable Kent a few minutes earlier had traversed a distance from the Woden Valley Hospital to the City Police Station parking area, a distance which could not have been much different from that traversed by Mr. Nicholl from Colbee Court, Phillip to the point where he saw Mr. Raber, in just under eight minutes.

(m) When Mr. Nicholl first saw Mr. Raber, Mr. Raber had blood on the lower part of his face which had not stopped bleeding but was not bleeding freely.

(n) Mr. Raber gave evidence, evidence which was unchallenged and not objected to, indeed partly led by counsel for the two officers, that he had complained to Mr. Nicholl that the police had hit him and he didn't know why.

(o) When first seen by Mrs. O'Rourke on the morning of 16 July 1982 Mr. Raber's face was bruised.

(p) Sergeant Scanes is noticeably bigger than Constable Thorn.

(q) The smell detectable on Mr. Raber's breath and from inside his car was of wine fumes.

(r) There was no smell of intoxicating liquor apparent from any source outside Mr. Raber's car when Hotel 8 arrived at the scene near the Albert Hall.

(s) The light was good enough to enable Constable Thorn, standing outside a car, to take particulars of Mr. Raber's licence without a further light source and to enable the state of Mr. Raber's fly to be observed.

The learned President further stated that he was also satisfied that the injuries to Mr. Raber's mouth and nose were sustained between 3.02 a.m. and 3.35 a.m. on the morning of 16 July 1982.

The learned President further found (and again the paragraphs have been numbered for convenience) inter alia -

(xi) The injury to Mr. Raber's eye was the sort of injury which would have been obvious to anyone had it been present the day before.

(xii) The evidence to the contrary by Dr. Smythe was not acceptable.

(xiii) The opinion evidence of Dr. Smythe, though modified in cross examination, was consistent with receipt by Mr. Raber of the injury to his mouth in the early morning of 16 July 1982. There were no set of circumstances put forward which would enable it to be said that in upwards of 30 minutes after the departure of Constables Crampton and Cantle another incident took place wherein the injuries received by Mr. Raber were caused.

(xiv) The injuries on Mr. Raber were inflicted in some such manner as he claims.

(xv) Nothing in the evidence suggests that the injuries received were sustained in a fall.

(xvi) The full and empty flagons were taken from the car by Constable Thorn but he smashed only the empty one; though unable to determine the ultimate fate of the second flagon, he was unable to accept the evidence of Const. Thorn as to the discovery of the glass.

(xv) Mr. Raber's evidence about the matters which lie "at the core of these charges" was not a lie.

(xvi) Mr. Raber was not attempting to harm any police officers out of malice.

(xvii) Mr. Raber was labouring under a sense of genuine grievance i.e. "the police are not allowed to smack the people".

(xviii) There was nothing in the demeanour of Constable Thorn which assisted him to decide one way or the other where the truth lay.

(xix) The evidence of Sgt. Scanes was not acceptable.

(xx) The last finding was based upon the demeanour of the witness and "a very strong circumstantial case".

(xxi) Some incident involving force may well have taken place in Acton Park during what might be described as the "second incident".

(xxii) Const. Thorn, having taken the appropriate particulars from the licence, returned it to Sgt. Scanes.

(xxiii) Sgt. Scanes failed to return it to Mr. Raber.

(xxiv) Const. Thorn's evidence concerning his discovery of the glass was unacceptable.

We would observe that so far as it is necessary to say so, all of these findings were, with respect, open to the learned President. Reference was made during argument to the meaning of the word or phrase "sufficient evidence" in s. 87(b) of the Complaints Act. There, counsel for the applicants, referring to "sufficient" said it meant "enough". Presumably he implied that it meant sufficient for the purpose with which the Tribunal was then concerned. In Black's Law Dictionary Fifth Edition at p. 1285, "sufficient evidence" is referred to thus -

"Adequate evidence; such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded; according to circumstances, it may be "prima facie" or "satisfactory" evidence. Sufficient evidence is that which is satisfactory for the purpose; that amount of proof which ordinarily satisfies an unprejudiced mind, beyond a reasonable doubt. The term is not synonymous with "conclusive;" but it may be used interchangeably with the term "weight of evidence".

In Taylor on Evidence 11th ed. Vol. 1 p.2 para. 2, some general observations are made by the learned authors as follows:-

"By competent evidence is meant that which the law requires, as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of inquiry. By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined; the only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of an ordinary man; and so to convince him, that he would venture to act upon that conviction in matters of important personal interest."

Garbutt v. Durham Joint Committee (1906) A.C. 291 was concerned with the evidentiary value of the certificate of "approved service" under s.4 of the Police Act 1890 referring to the use to be made of this certificate. Lord Loreburn L.C. said at p. 294 -

"It was a certificate under the 2nd sub-section of s.4, which has to be signed by the chief officer as distinguished from the police authority. In the first place, in my opinion, the certificate of the chief officer was not conclusive of anything. It was sufficient evidence - that is to say, the Court might act upon it if they thought fit."

We note that there is a distinction in s. 76(5) in the sense that the phrase referring to the requirement that the Tribunal shall give reasons in writing adds -

". . . . and a reference to the evidence or other material on which those findings are based."

In our view, the word "evidence" as used in s. 78(b) includes more than is usually so regarded in a court of law. Despite the distinction made in s. 76(5) (supra) the word "evidence" in s. 78(b) is not to be construed as referring to that body of proof received pursuant only to the strict rules of evidence which are applied in a court of law. In this regard we are mindful of s. 76(3) set out above. However that may be, in our view, there has not been shown to be any reason why this Court should accept that in any way the conclusions, primary and ultimate, of the learned President were other than completely open to him, given that he was not only entitled, but even required, to assess the credibility of witnesses. No error of law in the way he went about this task has been revealed. If we may say so, the Reasons for Decision evince a most detailed evaluation of the facts and circumstances before the learned President.

Though we have spent some time referring to the factual background, it is to be remembered that the appeal here is on a question of law, that expression to be construed as expanded by s. 78(b). We refer now to those questions of law which are the same in each Amended Notice of Appeal.

As to the first question of law there is no error demonstrated in the Tribunal dealing with a matter which may be susceptible of forming part of or being made the subject of a charge in a criminal matter. The Complaints Act, in plain terms, entrusts consideration of such a charge to the Disciplinary Tribunal without reservation. This contention was advanced and rejected, as counsel for the applicants was aware, in Hardcastle v. The Commissioner of Police, a decision of the Full Court of this Court published on 13 April 1984 as yet unreported. Their Honours said at pp.6 and 7 -

"It was submitted that para. 18 (1)(d) should therefore be so construed as to remove the possibility of the occurrence of double jeopardy. Counsel relied on an article "Double Jeopardy and Police Disciplinary Proceedings" by Alan E. Greaves (Inspector, West Yorkshire Metropolitan Police) 1983 Crim. L.R. 211 which discussed the principle of double jeopardy in relation to the Police Acts 1964 and 1976 of the United Kingdom.

In our opinion there is no substance in this submission. It misconceives the character of disciplinary proceedings in general and under the Discipline Regulations in particular. The object of disciplinary proceedings under the Discipline Regulations is 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. The object of disciplinary proceedings is not to punish (see Harvey v. Law Society of New South Wales (1975) 49 A.L.J.R. 362 per Barwick C.J. at p. 364) or to exact retribution (see Ex parte Attorney-General (Cth); re a Barrister and Solicitor (1972) 20 F.L.R. 234 per Fox, Blackburn and Woodward JJ. at p.244). The expression "disgraceful or improper conduct" is of wide import; sometimes it will and, at other times will not, encompass conduct which is also criminal conduct. 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. There is no room for the application of what is sometimes misleadingly called the principle of double jeopardy in this case. If the appellant were charged with, and convicted of, the same unlawful assaults as are the subject of the disciplinary offences he would not face double jeopardy or be punished twice for the same offence. He would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The two proceedings are essentially different in character and result."

Counsel sought only to keep the ground open for appeal, possibly, to a higher court. We do not need to consider it further except to say that not only are we bound by the decision referred to but, with great respect, agree with it.

The second question of law identified in the Amended Notices of Appeal is based upon s.78(b) of the Complaints Act. The Court is asked to set aside a number of findings of fact made by the Disciplinary Tribunal on the basis that the evidence before the Tribunal was not sufficient to justify those findings.

It is convenient to begin an examination of the issue so raised by referring to the words of Fox, Deane and Morling JJ. in Collins v. The Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at p.601 -

"We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses: see s.33(1)(c) of the Administrative Appeals Tribunal Act 1975. An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based."

It is apparent from what has already been said that the applicants have not satisfied the test there propounded - they have not shown that there was no material before the Disciplinary Tribunal upon which the conclusions could properly be based. However, Collins v. The Minister for Immigration and Ethnic Affairs (supra) was concerned with the provisions contained in the Administrative Appeals Tribunal Act 1975 and that statute does not contain a provision corresponding to s.78(b) of the Complaints Act. Consequently in this case it may be open to the Court to set aside the findings of the Disciplinary Tribunal on grounds based upon the sufficiency of the proof before the Tribunal in circumstances other than those falling within the test propounded in that case. But s.78(b) does not require the Court to consider afresh the evidence that was before the Disciplinary Tribunal with a view to determining whether the Court would have come to the same conclusion as the Tribunal had it been hearing the matter in the first instance. The Tribunal is the arbiter of disputed questions of fact, the role of this Court being to set aside the decision of the Disciplinary Tribunal only if it is satisfied that the Tribunal acted e.g. without any evidence or any sufficient evidence or upon a view of the facts which could not reasonably be entertained. In this regard reference might be made to Harris v. The Commissioner of Police (Full Court - 21 February 1984 - unreported).

In the present case much depended upon the view which the learned President took as to the credibility of the witnesses who appeared before him. There was ample evidence upon which he was entitled to act. We are not persuaded that any error of law in the extended sense mentioned in s.78(b) of the Complaints Act has been disclosed.

What we have said above is enough to dispose also of the third question of law which, as worded, the Amended Notices of Appeal raise. The ground, however, seeks support from Chamberlain v. R. (supra) as giving this Court in this proceeding authority to review findings of the Disciplinary Tribunal by a yardstick "unsafe and unsatisfactory". There was reference in that case to the jurisdiction of this Court in its appellate jurisdiction on appeals from convictions in a trial on indictment. Here the Court is exercising original jurisdiction, not in respect of a conviction, not from the verdict in a trial of a criminal offence on indictment, and not from a verdict in respect of a criminal offence. In our opinion the decision in Chamberlain as to verdicts which may be thought to be "unsafe and unsatisfactory", or "unsafe and dangerous" does not apply to the consideration by this Court of an "appeal" from the Federal Police Disciplinary Tribunal. In any event, we are well satisfied from our consideration of the reasons of the learned President that no question arises here of his conclusions being "unsafe" or "unsatisfactory" or "dangerous".

We propose that these appeals be dismissed with costs.