The Commissioner of the Australian Federal Police v The Federal Police Disciplinary Tribunal
[1990] FCA 314
•05 JULY 1990
Re: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
And: THE FEDERAL POLICE DISCIPLINARY TRIBUNAL; MICHAEL KEITH DUTHIE and JOHN
DOUGLAS CURTIS
Nos. G12 and G13 of 1990
FED No. 314
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Administrative Law - Judicial review - Federal Police Disciplinary Tribunal - Hearing of disciplinary offences - Tribunal forming adverse view of witnesses - Tribunal invited to consider whether evidence of further witness likely to affect decision without evidence being called - Tribunal answering that question in negative - Whether decision involved an error of law - Whether failure to take into account relevant consideration - Whether decision unreasonable.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Complaints (Australian Federal Police) Act 1987 (Cth), Part VI Australian Federal Police (Discipline) Regulations
HEARING
CANBERRA
#DATE 5:7:1990
Counsel for the applicant Mr T. Howe
in each proceeding:
Solicitor for the applicant Australian Government
in each proceeding: Solicitor
Counsel for the second Mr H.M. Selby
respondent in each proceeding:
Solicitors for the second Macphillamy Cummins and Gibson
respondent in each proceeding:
ORDER
The application be dismissed.
The applicant pay the second respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
These two applications by the Commissioner of the Australian Federal Police ("the Commissioner") for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") were heard together. The orders of review are sought in respect of decisions made on 14 December 1989 by the Federal Police Disciplinary Tribunal ("the Tribunal") established by the Complaints (Australian Federal Police) Act 1981 (Cth) ("the Complaints Act"). On that date the Tribunal, constituted by Mr B.R. Maguire, QC, determined that neither Michael Keith Duthie nor John Douglas Curtis, being members of the Australian Federal Police, was guilty of the disciplinary offence of which he had been charged.
Following the receipt of a complaint by one Michael Neil Whitty and after compliance with the procedures prescribed by the Complaints Act, the Commissioner instituted proceedings against Mr Duthie and Mr Curtis in respect of a disciplinary offence specified in reg. 18 (1) (b) of the Australian Federal Police (Discipline) Regulations. That regulation provides:
"18. (1) A member is guilty of a disciplinary offence and is subject to punishment in accordance with these Regulations if the member - . . .
(b) contravenes or fails to comply with a General Order or a General Instruction issued under section 14 of the Act;
. . ."
The reference to the Act is a reference to the Australian Federal Police Act 1979 (Cth). Regulation 18(1) (b) relevantly provides a disciplinary offence for the purposes of the Complaints Act by reason of the operation of reg. 3 of the Complaints (Australian Federal Police) Regulations.
The charge in each case alleged that on 6 April 1988 at Canberra in the Australian Capital Territory the member contravened General Instruction 6 in that he did arrest Michael Neil Whitty when proceeding by summons against Mr Whitty would have been effective. The arrest was alleged to have taken place at premises at Braddon, a suburb of Canberra, at which a business was being conducted under the style "Fantasy Lane Adult Shop".
Pursuant to s. 67 of the Complaints Act the proceedings were to be heard and determined by the Tribunal. Sub-section 71(1) of the Complaints Act provides that the Tribunal may, in any proceeding before it, take evidence on oath or affirmation and adjourn the proceeding from time to time. In proceedings heard by the Tribunal in pursuance of s. 67, the Commissioner and the member charged are to be the parties to the proceeding (sub-s. 75(2)). A party may appear in person or may be represented by a legal practitioner or by some other person (sub-s. 75(1)). The procedure of the Tribunal is, subject to Part VI of the Complaints Act and to the regulations thereunder, within the discretion of the Tribunal (sub-s. 76(1)). A proceeding before the Tribunal is to be conducted with as little formality and technicality and with as much expedition as the requirements of Part VI of the Complaints Act and a proper consideration of the matter before the Tribunal permit (sub-s. 76(2)). The Tribunal is not bound by any rules of evidence but may inform itself on any matter as it thinks appropriate (sub-s. 76(3)). The Tribunal is, in a proceeding heard before it in pursuance of s.67, to give reasons in writing for its decision, those reasons to include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based (sub-s. 76(5)). The Tribunal is to cause a copy of its decision and reasons to be furnished to each person who is a party to the proceeding (sub-s. 76(6)). A person who was a party to a proceeding before the Tribunal may appeal to this Court, on a question of law, from a decision of the Tribunal in that proceeding (sub-s. 79(1)).
The grounds upon which the orders of review are sought are that each of the decisions of the Tribunal was an improper exercise of the power conferred upon it in that it failed to take into account a relevant consideration; that each of the decisions involved an error of law; and that the exercise of the power in each case was so unreasonable that no reasonable person could have so exercised it. In essence, each of the grounds relied upon turned upon the assertion that the Tribunal, before reaching the decisions in question, failed to hear and take into account the evidence proposed to be given on behalf of the Commissioner by Gregory Alan Stretton who, at the relevant time, was Mr Whitty's solicitor.
At the hearing before the Tribunal, the Commissioner was represented by Mr P. Saxby and Messrs Duthie and Curtis by Mr H. Selby. On behalf of the Commissioner oral evidence was given by David Joseph Mayberry, Michael Thomas McGregor and Mr Whitty. Also in evidence were copies of statements, some in edited form, which had been made by those witnesses to the officers of the Internal Investigation Division (IID) of the Australian Federal Police in the course of their investigation of the complaint which had been made by Mr Whitty. A statement made by Mr Duthie to, and the records of two interviews he had with, the investigating officers were also received in evidence. In opening the matter, Mr Saxby foreshadowed that Mr Stretton would also be called to give evidence for the Commissioner.
Of the witnesses called by the Commissioner, only Mr Whitty and, to a lesser extent, Mr Mayberry could speak as to what took place at the premises at Braddon when Messrs Duthie and Curtis attended there on the evening of 6 April 1988.
At the conclusion of the oral evidence given by Messrs Mayberry, McGregor and Whitty, the Tribunal enquired of Mr Saxby how the charges could succeed in the light of the evidence that had been given. In the course of the discussion that followed, the Tribunal referred to the different versions given by Mr Mayberry and Mr Whitty as to what had been said by Mr Duthie on the occasion in question and made the following comment:
"Well, frankly, I do not believe either of them. Can Mr Stretton's evidence get you out of that?"
Mr Saxby answered in the affirmative but said he had some difficulty because Mr Stretton would not be available to give evidence "until late this afternoon".
After a short adjournment, the following exchange took place between Mr Saxby and the Tribunal:
"MR SAXBY: Mr Tribunal, I am agreed with my friend that I can tell you that there is some evidence that Mr Stretton will put to you, and that there are certain submissions in respect of that evidence. If you are of the view that that does not assist the case, then the proper course might very well be to dismiss the charges. If you take the view that it does assist the case, then it will be necessary for Mr Stretton to be called, and cross-examined. MR MAGUIRE: Well, all that sounds very sensible. I am happy to proceed on that basis. MR SAXBY: The evidence that will be put to you is that Mr Stretton attended at the station - the evidence is that:
'At 8.35 pm, I left Mr Whitty in the interview room, and spoke with Detective Duthie and Curtis. Duthie did not say anything, and did not appear surprised. I asked what Whitty was being charged with, and whether he was under arrest. I was told over an American Express matter, and that he was under arrest.' MR MAGUIRE: Told by whom?
MR SAXBY: By Duthie."
After hearing submissions from Mr Saxby and Mr Selby, the Tribunal said:
"Yes, well, gentlemen, I am able to deal with the matter to finality having heard your forecast about what Mr Stretton says. I really do not think it affects the issue. Do you want to say anymore, Mr Saxby?"
Mr Saxby answered in the negative. The Tribunal then dismissed the charges and gave reasons for doing so.
The reasons given by the Tribunal should be set out in full. They are as follows:
"The two respondents appear before the Tribunal, each of them to answer an allegation that on 6 April he, as a member of the AFP, did contravene general instruction 6 in that he did arrest Michael Neil Whitty when proceeding by summons against Whitty would have been effective. The case of the Commissioner is supported by the evidence of Mr Whitty and, and, to some extent, by the evidence of Mr Mayberry. I think the Commissioner's case falls at the first hurdle in that I am not satisfied that there was ever any arrest. I am not given the whole background circumstances of the transactions that took place over some weeks between the two respondents on the one hand and the man Whitty on the other hand. However, it is quite clear from the evidence that there had been a number of communications between the two police and Whitty, which communications had proceeded upon an amicable and co-operative basis.
Thereafter, on 6 April 1988, the two respondents arrived at the premises where Whitty was then employed. They remained at the premises for about half an hour and did not leave there until one of Whitty's superiors had arrived. There is no suggestion that any physical coercion was ever put upon Mr Whitty. It is quite clear that he left the premises with them without any coercion or restraint of a physical nature being applied to him. It is equally clear that his right not to go with them was fully explained to him by his solicitor and another gentleman over the telephone. What Whitty now seeks to assert is that his will was overborne by threats which were made to him by Sergeant Duthie whilst the three men were at the shop. Whitty says that Duthie said to him matters like, 'You are coming with us, we can do this the easy way or the hard way, come on, you are coming with us.' I do not accept one word of that evidence of Whitty. When interviewed by IID investigators on 4 May 1988, that is, about a month after the event Whitty was invited to outline his complaint. That interview is exhibit 4 and the question to which I refer is question 7. Thereafter, at question 73 he was asked, 'And what did they say to you on that occasion?' In the answers that follow those two questions there is not a breath of a suggestion of the material that is now sworn to by this man. I simply do not believe him.
He almost resiled from the proposition that he was told that he was under arrest. He watered it down to the extent that he had Duthie merely muttering, 'Yeh, I guess so', in answer to the witness's question, 'Am I under arrest?' I said earlier that the Commissioner's case was supported by the evidence of Mr Mayberry. It is supported to this extent: that Mr Mayberry swears to some words said to have been used by Duthie which would, at least in theory, support the allegations made against the respondent Duthie.
Mayberry's account is that in answer to Whitty's question, 'Am I under arrest?' Sergeant Duthie said 'Yes, you are under arrest.' There is no question there of muttering and there is no question there of the witness hearing the respondent say, 'Yeh, I guess so'. It is a completely different account from that given by Whitty. I must say that I took particular note of Mr Mayberry, who was the first substantive witness in the case. He gave most of his evidence with a very silly grin on his face. Nobody bothered to ask him about that but it was not lost on me. I do not know what to make of him, but it is clear to me that there was no physical restraint put upon the man Whitty immediately prior to his departure from the shop and I reject the evidence that he was told he was under arrest and I reject the evidence that he went because he was in fear. In those circumstances there simply cannot have been any arrest.
I am told that Mr Stretton, solicitor for Whitty, would swear that an hour or more later he was told by one of the respondents that the man Whitty was under arrest. I do not know what to make of that. If there was any arrest there was only one and it was at the shop. No other case is advanced by the Commissioner and Mr Saxby quite properly has conceded that there was an arrest at the shop or no arrest. What was said to Mr Stretton some hours later about the man Whitty's then circumstances does not seem to me to cast any light on the circumstances in which Whitty left the shop. In my view there was no arrest. The notifications against each of the respondents are dismissed and I order the Commonwealth of Australia to pay the costs of the Respondents."
Counsel for the Commissioner submitted that the evidence proposed to be given by Mr Stretton was relevant to what had taken place at the premises at Braddon. The evidence, so it was submitted, went directly to the question whether Mr Duthie had made an admission that Mr Whitty had been arrested at the premises in question and was corroborative of the account given by Messrs Mayberry and Whitty. The Tribunal was, in consequence, bound, it was said, to have regard to Mr Stretton's evidence in deciding what weight it should attach to the account given by the other witnesses. The essence of the submission made on behalf of the Commissioner was that the Tribunal rejected Mr Stretton's evidence as being irrelevant on the ground that it threw no light on what had occurred at the Braddon premises. It followed, it was submitted, that the decision of the Tribunal that Mr Stretton's evidence could not possibly assist in determining whether an arrest took place at the Braddon premises involved an error of law and a failure to take into account a relevant consideration. The Court was asked to set aside the Tribunal's decisions and remit the matters to a differently constituted Tribunal for determination in accordance with law.
In my opinion, the Commissioner has failed to make out a case for the intervention of this Court. It may be debatable whether it was desirable for the Tribunal to acquiesce in the course proposed by the parties in relation to Mr Stretton's evidence - it would, so it seems to me, have been preferable for the hearing to have been adjourned until Mr Stretton could attend to give his evidence from the witness box in the usual way. However that may be, I am satisfied, from a consideration of the course of the proceedings before the Tribunal and the reasons given by it for the decisions under review, that no error of law has been established and that the Tribunal did not fail to take into account Mr Stretton's evidence. Although the Tribunal had formed an unfavourable view as witnesses of both Mr Whitty and Mr Mayberry, it clearly approached the matter on the basis that it could not make a decision upon the disciplinary charges without having regard to the evidence that Mr Stretton might give. A fair reading of the Tribunal's reasons for decision can, I think, only lead to the conclusion that the Tribunal assumed that Mr Stretton's evidence would be to the effect of the statement of it made by Mr Saxby and determined that the statement alleged to have been made to Mr Stretton by Mr Duthie, even if accepted, could not overcome the tentative conclusion which the Tribunal had reached that the evidence given by Messrs Whitty and Mayberry as to the events at the Braddon premises on the evening in question could not be accepted.
I should add that there is nothing in the material before the court to support the submission that the exercise by the Tribunal of the power conferred upon it was so unreasonable that no reasonable person could have so exercised it.
In the light of the conclusion to which I have come it is unnecessary to consider the submission by counsel for Messrs Duthie and Curtis that, by reason of the right conferred upon a party to a proceeding before the Tribunal to appeal to this Court on a question of law, the Court should exercise its discretion under s.10 of the Judicial Review Act and refuse to grant the relief sought. It is also unnecessary to consider the further submission that the Commissioner is not "a person aggrieved" within the meaning of that expression in sub-s.3(4) of the Judicial Review Act.
Each of the applications is, therefore, dismissed. The Commissioner must pay the costs of Messrs Duthie and Curtis.
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