Swann v Commissioner of Police

IN THE FEDERAL POLICE

)

No . 7 of 1985

3(0

DISCIPLINARY TRIBUNAL

)

BETWEEN :

CONSTABLE PETER RICHARD SWANN

Appellant

AND :

THE COMMISSIONER OF POLICE

Respondent

O R D E R

THEPRESIDENT (KELLY J)

31 OCTOBER 1985

CANBERRA A .C .T.

THE TRIBUNAL ORDERS:

1 . That the appeal from the decision of the Commissioner on 9 September 1985 whereby he dismissed the appellant from the Australian Federal Police be allowed.

2 . . That the penalty of dismissal imposed by the

Commissioner be set aside.

3.That in substitution therefor the appellant be fined an amount equal to the salary payable to him for a period

•

of five days at the rate at which salary is payable to

him this day.

4.That the Commissioner pay the appellant's costs of and incidental to the appeal .

IN THE FEDERAL POLICE

)

No . 7 of 1985

DISCIPLINARY TRIBUNAL

)

BETWEEN :

CONSTABLE PETER RICHARD SWANN

Appellant

AND :

THE COMMISSIONER OF POLICE

Respondent

REASONS FOR DECISION	KELLY J - President
31 OCTOBER 1985

By notice issued on 7 May 1985 under Regulation 19

of the Australian Federal Police (Disciplinary) Regulations

(the Regulations) the Commissioner of Police instituted

proceedings against Constable Peter Richard Swann (the appellant) alleging a disciplinary offence specified in paragraph 18(1)(d) of the Regulations . The notice described the nature and particulars of the alleged offence as follows :-

"That you the said Peter Richard SWANN, a member of the Australian Federal Police, were guilty of improper conduct otherwise than in your official capacity, in that at Canberra in the Australian Capital Territory on 11 July 1984, you did report to Robert William

MUNRO, a member of the Australian Federal Police, that your private motor vehicle, Holden sedan registered number NSW JGE-877 had been stolen, well knowing such report to be false ."

Paragraph 18(1)(d) reads :-

"(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

O	conduct, either in his official capacity or otherwise ;"

On 30 May 1985 Mr M .A . Nicholson of the Australian Federal Police Association wrote to the Commissioner to advise that he was replying on behalf of the appellant and to indicate that the appellant denied the truth of the matters alleged and requested that the matter be heard and determined by the Federal Police Disciplinary Tribunal .

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In due course it was directed that Mr B

.R .

Maguire

of Queen's Counsel was to constitute the Tribunal appointed

to hear the charge.

After a preliminary hearing on 18 June 1985 the matter came before the Tribunal again on 4 July 1985 when the appellant through Mr Nicholson indicated that he intended to plead guilty . He was duly charged and pleaded

guilty .

The Tribunal recorded a finding of guilt and, as

it was required to do by s .67(3)(b) of the Complaints

(Australian Federal Police) Act 1981 (the Act), informed the

Commissioner in writing of its findings and remitted the proceedings to the Commissioner for the imposition of a penalty .

By notice dated 7 August 1985 the Commissioner advised the appellant, as he was required to do by s .67(7) of the Act, that he considered that it might be appropriate for him to impose the penalty, of dismissal and that the

appellant might, within seven days after service of the

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notice just referred to upon him, deliver to the Commissioner any written statement that he wished to have taken into consideration in respect of the appropriate penalty .

The appellant accepted the opportunity afforded him and wrote to the Commissioner on 14 August 1985 . He nominated Inspector A . Richards and Senior Sergeant P. Scotland as referees concerning his suitability to remain a

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member of the Australian Federal Police and nominated

Sergeant A . Jones as an additional referee.

Thereafter by notice dated 9 September 1985 the Commissioner, having taken into consideration the matters contained in the appellant's statement of 14 August 1985, imposed the penalty of dismissal upon him.

On 17 September 1985 the appellant appealed against the Commissioner's decision on the grounds that the penalty imposed was excessive in all the circumstances and that the Commissioner took into account irrelevant matters

•	and failed sufficiently to take into account relevant matters .
The evidence before the Tribunal showed that at about 4 .15 a .m . on Wednesday, 11 July 1984 a white Holden Torana hatchback had been involved in an accident at the junction of Froggatt and Masson Streets, Turner . As a
result it sustained minor damage and ended up facing in a westerly directly inside a fence hedge at 41 Froggatt Street some five metres from the front of the house at that address. When the police arrived at 4 .25 a .m . it had been
S	raining and was foggy and parts of the roads had a slippery
surface . The householder, Mr Smith, said that at about 4 .15 a .m . he had been awakened by the sound of a loud noise coming from his front yard . He turned the front porch light on and then saw a vehicle on the front lawn . He saw a man wearing a light coloured suit who did not appear to be injured alight from the vehicle . Mr Smith asked the man whether he was injured . He replied, "po" . Asked his name,

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he replied that he did not know .	He walked away in a
northerly direction.

Senior Constable Crampston investigated the

incident but was unable to complete his investigations

before he finished duty at 7 a .m . When he came on duty at

11 p .m . on 11 July 1984 he noted that a Holden Torana, registered number N .S .W . JGE-877, had . been reported by the appellant as stolen.

Shortly after Constable Crampston went with

S	Constable O'Ryan to the appellant's address . The appellant at first denied involvement in any accident and stated that his car had been "stolen from behind Manhattan's this
morning" .
Asked to tell of his movements on the previous evening, the appellant said that he left home at about 11 .15 p .m. on 10 July 1984 and went to the Labour Club in Belconnen . He left that club at about 12 .30 a .m ., picked up his car and then went in to the City where he parked in East Row, leaving the car unlocked and the keys under the front seat . He apparently went to an establishment called the Private Bin which he left at about 1 .30 a .m. He then went to the Manhattan Club which he left at about 2 a .m . and walked, because he was affected by alcohol, to Woolley Street, Dickson to go to the disco there . He said that he walked around for a while and then went back to where his car had been . He discovered that it was missing . He made a. search of the area but could not locate it . He then walked to the'City Police Station where 'he reported the matter .

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Told that a male person fitting his description was spoken to by the occupant at the scene of the accident at 4 .15 a .m . that morning, he said, "Yes it was me, I cannot remember too much" . He said that he had been_ wearing a white suit and that, having left the scene after the accident, he walked from Turner to his mate's place in Downer where he changed clothes and had a shower . He then

walked to the Police Station and reported his vehicle

stolen .

Senior Constable Crampton then asked Sergeant

•

Isselmann to attend at the appellant's address . Sergeant

Isselmann said to the appellant, " . . . I have been informed by Senior Constable Crampton that you were the driver of a

Holden Torana, N .S .W JGE-877 which was involved in an

accident outside 41 Froggatt Street, Turner this date . Did you make a report of a stolen motor vehicle last night?"

The appellant replied, "Yes" . Sergeant Isselmann then said, "Did you know it was not stolen when you reported it?" The appellant again replied "Yes" . Asked why he had done it, the appellant said, "It seemed like a way out of the prang".

On 12 September 1984 the appellant was interviewed

by Inspector A .G . Richards . He was first questioned

concerning a course of driving in London Circuit, Edinburgh Avenue and Marcus Clarke Street, City at about 4 a .m. He was asked to account for failing to turn left or right at the junction of Masson and Froggatt Streets . He replied, "I did not know where I was, I believed that I was on a street

that went straight through that area, when I saw the

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junction, I applied my brakes and I lost control of the car,

and it went across, I believe it went over the gutter and into the hedge ." He was asked whether he had given the

occupant of the house at 41 Froggatt Street a false name and address and replied that he could not remember . He knew that the driver of a motor vehicle was obliged under the

provisions of the Motor Traffic Ordinance to give his name

and address to a person whose property had been damaged as a result of a motor vehicle accident and knew also that under that same Ordinance a driver was required to report an

•

accident to the police as soon as practicable and in any

case within 24 hours.

First Constable Munro made a statement which was

in evidence before the Tribunal . He reported that on

Wednesday, 11 July 1984 he was on duty at the Inquiry Office at City Police Station when he was approached by the appellant who told him that he wanted to report that his car had been stolen from behind the Manhattan . Constable Munro

obtained a brief description of the motor vehicle and contacted operations to put out an all cars message . He

•

then got a full description of the vehicle and questioned

the appellant about the circumstances of his losing the

vehicle . The appellant said that he had parked the car at about 2 .30 a .m . that morning and went then to Manhattan's where he had a couple of drinks and stayed for about half an hour . Thereafter he walked to the "Copa", leaving it later

by himself .He then went through Garema Place Up

Northbourne Avenue but did not pick up his car because be

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did not wish to be picked up for "pissy driving" .

He said

that he had arrived at the Copa at about 4 o'clock or a

little later and stayed there until it was closed when he

walked back to Civic along Limestone Avenue . He discovered the car missing from the carpark at about 6 .30 or so . He

walked around nearby streets and then went to the police station . Constable Munro remarked that it was stupid to leave keys in the unlocked car and the appellant agreed.

First Constable Munro said that he could smell

intoxicating liquor on the appellant's breath, that he was

S	unstable on his feet and appeared to be drowsy and was affected by intoxicating liquor in Constable Munro's opinion to a slight degree.
In his letter of 14 August 1985 to the Commissioner the appellant indicated his awareness of the
gravity of his actions . He gave his service history briefly
and then offered the following in explanation of his actions :-

"After the initial incident I believe my inexperience and then immaturity created a

•

real fear in my mind as to the consequences of my actions. My impulse then was to attempt to evade possible punishment and I compounded the severity of my offences by making a false complaint . As previously stated I am aware of the seriousness of this situation and believe that you must impose a penalty to maintain the discipline necessary to administer a body such as the Australian Federal Police.

I believe that I have gained the experience and maturity necessary to become a valued member of our Police Force . I further believe that my actions have been a learning experience for many other young members and the likelihood of 'my ever becoming :involved in any disciplinary offence again is very remote ."

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The Commissioner gave reasons in writing for his

decision to dismiss the appellant . He said that in arriving

at his decision he had taken into account all matters placed before him and the referees nominated by him . He referred to an'incident noted at p .3 of Inspector Richard's report of 2 August 1985 . Inspector Richards had said,

"At 5 .15 a .m. on 8 May 1985 Constable Swann was involved in a single vehicle motor accident . He was affected by alcohol at the time of the accident . No charges were preferred concerning this matter . Accident number 3747 refers ."

The Commissioner said that in considering penalty he had

S	disregarded details of that accident . By this I understand
him to have meant that he did not treat the circumstances of
the accident as an aggravating factor . He went on to say, however, as I understand him, that he used the episode in assessing whether the appellant's perception of his own growth in experience and maturity was accurate and in seeking to establish whether his actions in the early morning of 11 July 1984 constituted an aberration inconsistent with his normal pattern of behaviour or were
•	explicable having regard to other aspects of his nature and conduct . The Commissioner went on to say :-

"The charge brought against Constable Swann

is of an extremely serious nature.

I believe that as a result of his own actions, Constable Swann no longer enjoys the full trust of his superiors or peers . He has failed by his own actions to observe the ethics required for the office of Constable ."

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Before he imposed the penalty of dismissal the

Commissioner had the assistance of reports from Assistant

Commissioner McConaghy, Inspector A .G . Richards, Senior

Sergeant P .G . Scotland and Sergeant A .A . Jones.

From all the material before me I summarise briefly the appellant's service record.

By 14 August 1985 he was 21 years old . He had

been sworn in as a member of the Australian Federal Police

on 31 May 1982 and completed a Protective Service Course in Sydney .He then carried out security duties for

approximately nine months . In June 1983 he completed a General Policing Training Course, coming 28th out of a class

of 29 . He then returned to Sydney where he remained until 26 September 1983 . He was then transferred to Information

Branch (Crime), Canberra and remained there for about 18 months . In March 1985 he was transferred to security duties at the Lodge.

His supervisor while he was in Information Branch

(Crime) assessed him as immature, a good worker, of good

demeanour, with a good sick leave record . He considered

that the appellant needed street experience.

Inspector Richards pointed out that it is

difficult to compile a comprehensive assessment of members

performing duties within the Diplomatic and Security Branch

as the greater majority of their duties amount simply to

routine guard duty . He said trenchantly that

"sitting in guard boxes the members do not have the opportunity to display their full potential or use much initiative . They compile very little correspondence and engage in very little active police duties ."

r~6

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Nevertheless, together with Senior Sergeant Scotland, he compiled the following assessment . He considered that the appellant's knowledge of his work was of a high standard having regard to the area of the work and that his work

performance was also of a high standard . He described his interest, enthusiasm and initiative as average relative to

the nature of his duties . (One understands him to have meant that the duties themselves did not spur members on to use their initiative and to display great interest and enthusiasm .) He said that the appellant's bearing was good,

•

that he was always well turned out, that his oral expression was of a good standard, that he was well liked by other members and that he was dependable . He described the appellant's potential as that of an average member who should progress in the uniformed branches . He said he was moody, that he was punctual and that his sick leave record was good . He was understandably unable to comment on some aspects of the appellant's work and character on which normally he might have been expected to do.

Inspector Richards concluded that the appellant was an average member . He found him when he interviewed him concerning the incident of 11 July 1984 and on all other occasions to be "a sincere young person who showed a lot of respect" .

Sergeant Scotland, in reporting on the appellant,

said, inter alia,

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"His duties at [the Lodge] Station consist of static points only, a duty that is at times boring and mundane, however, a very necessary duty nonetheless . He has always carried out his allocated tasks without question, although I have found him to be moody and irritable at times . This may be due to the factthathehadmanyproblems, departmentalwise . I have noticed that he became slightly angry when made the brunt of a joke by his fellow workers. This I also contributed to his work problems of his own making.

I have spoken with his squad Senior member and other members of his squad who have formed the opinion that he is immature in the ways of the world, pertaining to his duties as a police officer . I am inclined to agree with their observation . His Senior member F/C BAILEY has intimated that the rest of the squad would be rather apprehensive of working 'on the road' with Constable SWANN, at this stage, because of this immaturity . However, all squad members have conferred together and have formed the opinion that, should he be given the opportunity to remain in the Australian Federal Police, they would attempt to nurture him to maturity as a member of this Force.

I have spoken with 'Constable SWANN in relation to his present problem and have found him to be as repentent as anyone could be with the possibility hanging over him . I have found him to be honest with me in my endeavours to ascertain his reasoning for doing what he did.

As mentioned previously, the only thing that I have found lacking with him, is his naivety and immaturity . . ..

. . . I can only assess his work value whilst on duty, and as I have reported previously his only apparent failing is his immaturity ."

Sergeant Jones has known the appellant for almost

the whole of his life . In reporting on him he said,

"[The appellant] has been very distressed by his actions and ashamed of what he has done. I feel this is evidenced by the fact that he has pleaded guilty both to the traffic offences and the disciplinary action that has been taken against him thereby accepting what he has done was deplorable and not the

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actions of a responsible Police Officer . He also feels he has let his family and the Police Force down by his actions.

Knowing [the appellant's] character I feel that he has gained a lot as a result of what has happened to him. He has matured in himself and with more active police duties now that he has been transferred I would suggest that given the chance [the appellant] would not come before you again on any other disciplinary offences . I would further suggest that given the chance Peter SWANN has the potential to be a fine Police Officer ."

Assistant Commissioner McConaghy said :-

"An examination of the comments of his Commander and Supervisor do not paint Constable SWANN in a favourable light . My initial reaction was to conclude in favour of the AFP and recommend he be dismissed.

However, I believe that such action may be harsh and that Constable SWANN is deserving of another chance . I say this firstly, because of the amount of time and effort the AFP has invested in him, and secondly, because his duties to date have not given him anopportunitytoexhibithisfull potential . Notwithstanding his peers expressed concern at working 'on the road' with him, I believe he should be given such an opportunity. A period of such duty may aid in his maturity.

I am aware of the circumstances that led to him being charged ; the most serious being the fact that he told deliberate lies . I believe, however, his behaviour on that occasion may be partly explained by his apparent immaturity . I would like to believe he has learnt his lesson, and such behaviour will not occur again.

I recommend that Constable SWANN's penalty be monetary, . . . and that he be told that any future similar indiscretion will not be viewed so leniently ."

Plainly the Commissioner placed much emphasis upon his belief that the appellant no longer enjoyed the full trust of his superiors or peers . This is not surprising, having regard to the material placed before him . However., .1

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have had the benefit of statements made by those working

with him . First Constable Bailey, referred to in Sergeant Scotland's report, after discussing the incident, said that he believed that the whole incident had made the appellant

into an understanding police officer with feelings for

others developed since First Constable Bailey had known him . He found the appellant to be a very honest and polite

person . He could conclude only that the appellant acted as he did out of fear and embarrassment and that he believed

that those actions were completely out of character . He concluded by saying that he hoped to continue serving alongside the appellant in future.

Constable Harrigan described him as one who took pride in his work and was reliable at all times, as friendly and one who got along well with most people . He considered the actions the subject of the charge most out of character for the appellant.

Constable Konemann described him as a reliable and

trustworthy member who conducted himself in an efficient and

•	diligent manner in the performance of his duties, one who
was always cooperative and willing to help others working with him . He said that he hoped to continue to work with the appellant in the future.
First Constable Searle of the Information Branch (Crime) had known the appellant for almost two years and
found him to be a reliable and honest member of that
branch, diligent, efficient and cooperative with other
members of the section .

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Section 68(5) of the Act, dealing with an appeal such as that before me, provides that

"The Disciplinary Tribunal constituted by the

President or a Deputy President shall hear and determine the appeal and may -

(a)	affirm the penalty imposed on the member in respect of the breach of discipline; or
(b)	set aside the penalty imposed on the member in respect of the breach of discipline and substitute for that penalty such other penalty as the Tribunal deems fit, being a penalty that the Commissioner would have had the power to impose under the prescribed regulations if he had heard the proceedings and had found the member

•	guilty of the breach of discipline ."

Section 76(1) reads :-

"In a proceeding before the Disciplinary Tribunal, the procedure of the Tribunal is, subject to this Part [VI], and to the regulations, within the discretion of the Tribunal ."

No relevant regulations have been made . By virtue of s .53(2)(b) of the Act, the reference in s .76(1) to a proceeding before the Disciplinary Tribunal is to be read as including a reference to an appeal to the Tribunal under

s .68 .

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Section 76(3) provides that the Tribunal is not

bound by any rules of evidence but may inform itself on any

matter in such manner as it thinks appropriate.

Neither the Act nor the Regulations gives any specific indication of the nature of an appeal from the Commissioner under s .68.

The extent of the Tribunal's powers to regulate

its procedure and to inform itself on any matter in such

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manner as it thinks fit without being bound by the rules of evidence indicates that it may receive fresh evidence or other material in connection with the subject matter of an appeal and may deal with that fresh evidence or matter in its proper discretion.

The hierarchy of the appellate system established

by the Act differs substantially from that which was in

existence under the Police (Disciplinary Provisions) Ordinance 1972, the relevant provisions of which were considered by Fox J in Scanes v . Wilson (1974) 22 F .L .R.

•

262 .

In that case his Honour concluded that an appeal

to the Supreme Court of the Australian Capital Territory

from the Police Appeal Board set up under that Ordinance was

not a re-hearing de novo . But that conclusion depended at least in part upon his Honour's interpretation of the

Ordinance which provided that an appeal from the Commissioner to the Board should be by way of re-hearing while no such provision was made in respect of an appeal

O	from the Board to the Supreme Court . After considering the
authorities at length, his Honour reached the conclusion that an appeal against the penalties imposed by the Appeal Board should be determined upon the principles applicable when reviewing discretionary judgments . Of course, the Commissioner exercises a discretion when imposing a penalty and very great regard must be paid to his decisions because he is, after all, the person directly charged with the
responsibility for the discipline of the Australian Federal

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Police . But that does not mean, in my opinion, that the discretion which he exercises can only be reviewed by the

Tribunal in accordance to the ordinary principles applicable when an appellate court reviews discretionary judgments.

It follows, I think, that when the Tribunal hears an appeal from the Commissioner under s .68 of the Act it does so by way of a re-hearing de novo.

What the appellant did was very wrong . It seems

plain that he concocted the story which he did at a time

when his faculties were to some degree impaired . I am not,

S	nor was the Commissioner, dealing with that aspect of his conduct . The Commissioner , was apparently content to rely upon the convictions in respect of the charges which I may shortly describe as negligent driving, failure to report the accident and failure to give his name and address to Mr Smith when required . In respect of those charges the appellant was fined a total of $500 . I note that he did not plead guilty, as Sergeant Jones said he did, to the charges. They were dealt with in his absence . (It seems most unlikely that available evidence would have supported an alcohol-related charge .)
Nevertheless, I cannot ignore totally the circumstances of the offence and I have some regard to the incident of 8 May 1985, approaching it in the same way as I
understand the Commissioner did.
I compare the material before the Commissioner which seems to have led him to the belief that the appellant no longer enjoyed the full trust of his superiors or peers,

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with that before me, noting that the material of four of his peers was not before the Commissioner . It is striking, having regard to the disciplinary offence of which the

appellant was found guilty, to note that First Constable Bailey described him as a very honest and polite person, that Constable Harrigan described him as reliable at all times and as having committed actions most out of character, that Constable Konemann described him as reliable and trustworthy and that First Constable Searle described him as a reliable and honest member.

I see no reason to doubt the accuracy of any of the material placed before me . It was not suggested that I should .

In all the circumstances I think that the appellant may be allowed one more chance in respect of an incident and actions which no doubt seemed to be "a good

idea at the time" . He should take solemn warning, however,

that any similar conduct or, indeed, conduct involving misuse of alcohol would be viewed seriously and as almost certainly meriting dismissal.

In all the circumstances I allow the appeal. Instead of the penalty imposed by the Commissioner I impose on the appellant a fine equal to the salary payable to him for a period of five days at the rate at which salary is

payable to him this day .

I certify that this and the 1(0

preceding pa es

.are a true copy of the

Reasons for	herein of his 'Honour
Mr. Justice
Associate

Dated:61 O °gam 186

[1985] AFPDT 10

31 October 1985