Allan, John Gerrard v Commissioner of the Australian Federal Police & Anor... [1983] FCA 204 | Case summary

Federal Court of Australia|1983-08-19|Before: Neaves J

That the applicant pay one half of the costs of the

BETWEEN: JOHN GERRARD ALLAN Applicant AND: THE COMMISSIONER OF THE

BETWEEN: PETER JOHN HARDCASTLE Applicant AND: THE COMMISSIONER OF THE

These are two applications under the Administrative

Decisions (Judicial Review) Act 1977 which, by consent, were

heard together. Each of the applicants, John Gerrard Allan and Peter John Hardcastle, is a member of the Australian Federal Police. In each case the administrative decision in respect of which an order of review is sought is a decision of the Federal Police Disciplinary Tribunal established under the

Complaints (Australian Federal Police) Act -1981 made on 17

November 1982 finding the applicant guilty of certain dis- ciplinary offences. The application in each case was not filed until 8 February 1983 and a question arose whether an extension of time within which to bring the proceedings was necessary

under section 11 of the Administrative Decisions (Judicial

Review) Act 1977. By consent it was ordered that the time within which the proceedings might be taken be extended up to

and including the date on which the applications were filed.

The Tribunal found Senior Constable Allan guilty of six disciplinary offences each consisting of improper conduct in his official capacity: Australian Federal Police (Discipline) Regulations, paragraph 18(1)(a). Particulars of the improper conduct were that Senior Constable Allan on or about 22 November 1980 -

(a) at Garema Place, Canberra did assault Christopher Michael Clarke; (b) whilst in a motor vehicle registered number 22A-220

(c) at the City Police Station, Canberra did assault Simon Frederick Dalton; (d) at the City Police Station, Canberra did assault John Gordon Morris; (e) at the City Police Station, Canberra did assault Craig John Tigwell; and (£) at the City Police Station, Canberra did assault Simon Mark Griffiths. In its decision the Tribunal identified the offences by reference to five notices dated 31 July 1982 and a further notice dated 13 August 1982 addressed to Senior Constable

Allan to which it will be necessary to make further ref-

Detective Senior Constable Hardcastle was found guilty of five breaches of discipline, namely that he was guilty of improper conduct in his official capacity in that he was knowingly concerned in the commission by Senior Constable Allan of each of the breaches of discipline referred to in the paragraphs (a) to (e) inclusive set out above (Australian Federal Police (Discipline) Regulations, regulations 18(1)(d) and 18(2)). The Tribunal identified those offences by reference to five notices dated 31 July

1982 addressed to Detective Senior Constable Hardcastle.

expense for the parties, was taken up in endeavouring to

have the applicants identify, with sufficient particularity to enable the respondents to know the case they had to meet, the administrative decisions or conduct which they wished to have reviewed, and the grounds relied on. Successive attempts were made to amend the applications but it was not until the hearing had almost been completed that an acceptable amended application was filed. Practitioners should take care to

ensure that process under the Administrative Decisions

(Judicial Review) Act 1977 is prepared in such a way as to

convey to the parties and the Court a reasonable appreciation

Regulation 18 of the Australian Federal Police (Discipline) Regulations provides: -

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

(a) contravenes or fails to comply with a provision of Division 1;

(b) contravenes or fails to comply with a General Order or a General Instruction issued under section 14 of the Act;

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

(e) acts in a disorderly manner or in a mIhanner unbecoming a member of the Aust- ralian Federal Police;

(£) acts in a manner that is prejudicial to the good order and discipline of the Australian Federal Police;

(g) acts in a manner that brings, or is likely to bring, discredit to the reputation of the Australian Federal Police; or

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

(2) A member who aids, abets, counsels, procures, or by act or omission is directly or indirectly knowingly concerned in, or party to, the commission of any disciplinary offence shall be deemed to be guilty of that disciplinary offence and is punish- able accordingly."

It was submitted on behalf of the applicants that the Tribunal lacked jurisdiction because the conduct alleged against them did not fall within the expression "disgrace- ful or improper conduct" in paragraph 18(1)(d) of the

It was argued that the expression "disgraceful or improper conduct" embraced only conduct proscribed by Division 1 (Conduct of Members) of Part II of the Australian Federal Police (Discipline) Regulations or conduct contrary to a General Order or a General Instruction issued under section 14 of the Australian Federal Police Act 1979. To accept this argument would give no operative force to paragraph (d) of sub-regulation 18(1) in view of the express provisions contained in paragraphs (a) and (b) of that sub-

It was also argued that, on the proper construction of the regulations, paragraph 18(1)(d) does not entompass conduct which, if proved, amounts to the commission of a eriminal offence. To construe the provisions as authorising the institution of disciplinary proceedings in respect of such conduct was asserted to be contrary to principle and authority but no authority directly in point was cited.

Two matters were relied upon to support this assertion. First, it was submitted that in respect of an allegation of criminal conduct a member of the Australian Federal Police

is entitled to the right of trial in aforumthat applies

the criminal onus of satisfaction beyond reasonable doubt and, in the case of a serious allegation, the right of trial by jury. Secondly, it was said that the institution of proceedings for a disciplinary offence where the conduct alleged amounts to a breach of the criminal law exposes

the member to double jeopardy. It was said, and I think rightly, that whatever the outcome of the proceedings for

a disciplinary offence, those proceedings would be no bar to subsequent criminal proceedings in respect of the same conduct. It followed, so the argument ran, that the regu-

lations should be so construed as to remove the possibility

and Police Disciplinary Proceedings" by Alan E. Greaves [1983] Crim. L.R. 211. In my opinion nothing in that article supports a reading down of the general language of paragraph 18(1)(d) of the regulations. The learned author deals with the position in England under the Police Acts 1964 and 1976, which contain provisions which have no counterpart in the legislation relevant to these proceedings, and under a circular issued by the Home Office covering aspects of

In my opinion there is no sufficient basis for construing paragraph 18(1)(d) of the regulations as exclud- ing from its purview conduct which, while answering the

description of disgraceful or improper conduct, also amounts

to a breach of the criminal law. When disciplinary pro- ceedings are taken the member is not charged with a criminal offence: he is charged with a breach of discipline. The expression "disgraceful or improper conduct" is one of very wide import and conduct which amounts to a breach of the criminal law will in many cases of its very nature be conduct that would be regarded as disgraceful or improper if engaged in by a police officer. There is nothing to be found expressly in the regulations to warrant giving the expression a limited meaning and there is, in my view, no necessary implication arising from a reading of the regulations as a

One may conjecture why criminal proceedings were not instituted in respect of the conduct alleged against the applicants but the fact is that no such proceedings were instituted and, so far as the evidence before the Court goes, none are contemplated. No question of double jeopardy in fact arises. All the applicants can say is that there is the mere possibility of criminal proceedings being brought against them in respect of the conduct relied upon in the disciplinary proceedings. The presence in sub-regulation I8(1) of the regulations of paragraph (h) to the effect that a member is guilty of a disciplinary offence and is subject to punishment in accordance with the regulations if the member is found guilty by a court of an offence against a law of the Commonwealth, a State, a Territory or another country is sufficient to dispel the notion that the regulations do

not contemplate the same conduct being the subject of both

eriminal and disciplinary proceedings. There is, I think, much to be said for the view that in a case where the Commissioner is contemplating both criminal and disciplinary proceedings in respect of the same conduct, the criminal proceedings should be heard and determined before any hearing

of the disciplinary proceedings but this is not a matter

that will avail the applicants in these proceedings.

For the purpose of discussing other submissions put on behalf of the applicants it is necessary to state

The conduct alleged against the applicants is said to have taken place on or about 22 November 1980 but it was not until January 1982 that disciplinary proceedings were instituted. The reasons for the delay have not been explained but the delay provided no legal impediment to

Signed two documents, one addressed to each applicant, under sub-regulation 19(1) of the Australian Federal Police (Discipline) Regulations which stated that disciplinary proceedings were thereby instituted. The notice addressed to Senior Constable Allan stated the nature and particulars of the alleged disciplinary offence as follows:-

the Australian Federal Police, at Canberra in the Australian Capital Territory on or about the 22nd

day of November 1980, were guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, to wit, improper conduct in your official capacity, in that you did, at divers places, unlawfully assault Craig John TIGWELL, John Gordon Morris, Christopher Michael CLARKE, Simon Frederick DALTON and Simon Mark GRIFFITHS."

The corresponding part of the notice addressed to Detective Senior Constable Hardcastle read as follows: -

"Whereas at Canberra in the Australian Capital Territory on or about the 22nd day of November 1980, John Gerrard ALLAN, a member of the Australian Federal Police was guilty of a disciplinary offence specified in paragraph

18(1) (d) of the Australian Federal Police (Discipline) Regulations, to wit, improper conduct in his official capacity, in that he did, at divers places, unlawfully assault Craig John TIGWELL, John Gordon Morris, Christopher Michael CLARKE, Simon Frederick DALTON and Simon Mark GRIFFITHS, you the said Peter John HARDCASTLE were guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, to wit, improper conduct in your official capacity, in that by act or omission you were directly knowingly concerned in the commission of the said disciplinary offence by the said John Gerrard ALLAN."

Each of the notices requested the person to whom it was addressed to notify the Commissioner within 21 days of

admitted or denied that he was guilty of the alleged disciplinary offence and, if he denied that he was guilty of that offence, whether he wished the proceedings to be heard by the Commissioner or the Disciplinary Board established under the Australian Federal Police (Discipline) Regulations. The addressee was also informed that he might, within 21 days of the date of service of the notice,

deliver to the Commissioner any written statement that he

might wish to make in relation to the alleged offence and

any written statement by another person that the addressee might wish to tender in support of his own statement. The addressee was also informed that he was entitled to appear

The notice addressed to Senior Constable Allan was served on him on 12 January 1982. Detective Senior Constable Hardcastle was served on 19 January 1982. By memorandum dated 19 January 1982 addressed to the Commissioner, Aus- tralian Federal Police, Senior Constable Allan acknowledged receipt of the notice, denied his guilt and requested that the matter be dealt with by the Board. He also stated that he would be legally represented by Mr. S. Wilcox of the law fixm of Snedden, Hall and Gallop. By memorandum dated 25 January 1982 addressed to the Officer in Charge, Criminal Investigation Branch, City Police Station, Canberra, Detective Senior Constable Hardcastle acknowledged receipt of the notice and indicated that he wished the matter to be heard before the Board. He also advised that he would be

By memorandum dated 26 January 1982 the Commissioner, pursuant to paragraph 19(4)(a) of the Australian Federal Police (Discipline) Regulations, referred to the Disciplinary Board for determination the question whether the members

were guilty of the disciplinary offences alleged against them.

"H, Garnier - Secretary" the Commissioner was advised that, in view of the expected date of operation of the Complaints

(Australian Federal Police) Act 1981 (then apparently thought

to be 2 April 1982), the Disciplinary Board did not intend

to commence hearing a number of cases including the cases against the applicants in these proceedings. The memorandum was typed on letterhead of the Department of Administrative Services and it was submitted on behalf of the applicants that what had occurred in relation to the notices dated

8 January 1982 precluded the Commissioner from proceeding further against them in relation to the disciplinary

matter it will be convenient to refer to the Complaints

(Australian Federal Police) Act 1981 and the amendments

to the Australian Federal Police (Discipline) Regulations

1981, which was assented to on 9 April 1981, was expressed to come into operation on a date to be fixed by Proclamation. That date was 1 May 1982 (see Commonwealth of Australia Gazette No. S79 of 28 April 1982). Section 54 of the

Act established a Tribunal, to be known as the Federal Police Disciplinary Tribunal, to consist of a President

and such number of Deputy Presidents and other members as

are appointed in accordance with the section. By sub-section

65(1) the President is empowered to give directions as to the arrangement. of the business of the Tribunal and as to the person who is to constitute the Tribunal for the purpose of a particular proceeding. The Tribunal is, for the purposes of the exercise of its powers in relation to a particular proceeding, to be constituted by one member

(other than proceedings to which sub-section 67(1) applies - that sub-section having no application in the circumstances with which the Court is presently concerned) are instituted by the Commissioner against a member under the prescribed regulations in respect of a breach of discipline and the member does not admit the truth of the matters alleged to constitute the breach of discipline, the proceedings are to be heard and determined by the Disciplinary Tribunal -

writing, that the proceedings be so heard and. deter-

be so heard and determined. The reference to "the prescribed regulations" is a

reference to such regulations made under the Australian

Federal Police Act 1979 as are declared by the regulations

made under the Complaints (Australian Federal Police) Act

1981 to be the prescribed regulations. By the Complaints

(Australian Federal Police) Regulations, Statutory Rules 1982 No. 91, the Australian Federal Police (Discipline)

Regulations made under the Australian Federal Police Act

1979, as amended and in force from time to time, are

By the Australian Federal Police (Discipline) Regulations (Amendment) Regulations, being Statutory Rules 1982 No. 90, Part IV of the Australian Federal Police (Discipline) Regulations containing sections 24 to 46 inclusive and providing for the establishment of the Disciplinary Board was repealed (regulation 7). Regulation 9 should be set out in full. It provides:-

"(1) Notwithstanding the provisions of the Australian Federal Police (Discipline) Regulations, where -

(a) proceedings have been instituted in respect of a disciplinary offence by the Commissioner under regulation 19 of the Australian Federal Police (Discipline) Regulations before the commencement date; and

(b) those proceedings have not been heard and determined by the Commissioner under regula- tion 21, or by the Board under regulation 37, of the Australian Federal Police (Discipline) Regulations,

those proceedings shall, on the commencement date, be deemed to have been withdrawn by the Commissioner.

(2) Nothing in sub-regulation (1) affects the power of the Commissioner, on and after the commencement date, to institute proceedings under regulation 19 of the Australian Federal Police (Discipline) Regu- lations as amended by these Regulations in respect of a disciplinary offence, being a disciplinary offence the proceedings in respect of which are deemed to have been withdrawn by virtue of sub- regulation (1).

(3) In this regulation - 'Board' means the Disciplinary Board established

Federal Police (Discipline) Regulations as in force immediately before the com-

'commencement date' means the day on which the Complaints (Australian Federal Police) Act 1981 comes into operation."

Regulation 19 of the Australian Federal Police (Discipline) Regulations was also amended by Statutory

Rules 1982 No. 90. Its provisions, as so amended, should

"(1) Where it appears to the Commissioner that a member may have committed a disciplinary offence, the Commissioner may, if he thinks fit, institute proceedings against the member in relation to the disciplinary offence by causing a notice to that effect to be served on the member.

(2) A notice served on a member under sub- regulation (1) -

(a) shall be signed by the Commissioner or a person authorised by him to sign notices under that sub-regulation;

(b) shall state the nature, and give the particulars, of the alleged disciplinary offence; .

(c) shall request the member to notify the Commissioner within such period, not being less than 7 days after the date of service of the notice, as is specified in the notice -

(i) whether the member admits or does not admit the truth of the matters alleged to constitute the disciplinary offence; and

(ii) where the member does not admit the truth of the matters alleged to constitute the disciplinary offence- whether the member requests that the proceedings be heard and determined by the Disciplinary Tribunal;

(d) shall state that the member may, within the period specified in the notice in accordance with paragraph (c), deliver to the Commissioner -

(i) any written statement that the member may wish to make in relation to the alleged disciplinary offence; and

(ii) any written statement made by another person that the member may wish to

(e) shall inform the member that he is entitled to appear at the hearing of the proceedings and, in the case of proceedings before the Disciplinary Tribunal, that the member may appear in person or may be represented by a legal practitioner or by some other person.

(3) Where a member on whom a notice has been served under sub-regulation (1) has not within the period specified in the notice given notice to the Com- missioner for the purpose of sub-paragraph (2)(c) (i), the member shall, for the purpose of this Part and of section 67 of the Complaints Act, be deemed not to have admitted the truth of the matters alleged

to constitute the disciplinary offence referred to in the notice.

(4) Where the period specified in a notice served under sub-regulation (1) has expired and -

(a) the member has not requested the Commissioner, in writing, that the proceedings be heard and determined by the Disciplinary Tribunal; and

(b) the Commissioner has not determined, in writing, that it would be desirable for the proceedings to be so heard and determined,

the Commissioner shall, as soon as practicable after the expiration of the period -

(d) by notice in writing served on the member, inform the member of the time, date and place so fixed."

two notices in pursuance of regulation 19 of the Australian Federal Police (Discipline) Regulations, one addressed to Senior Constable Allan and the other to Detective Senior

Constable Hardcastle. The notice to Senior Constable Allan

"WHEREAS it appears to me that you, John Gerrard ALLAN, a member of the Australian Federal Police, may have committed a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that you at Canberra in the Australian Capital Territory on or about the 22nd day of November 1980, were guilty of improper conduct in your official capacity;

Commissioner of Police of the Australian Federal Police, hereby institute proceedings against you, the said John Gerrard ALLAN, in relation to that disciplinary offence.

THE nature and particulars of the alleged disciplinary offence are as follows:

That you, the said John Gerrard ALLAN, on or about the 22nd day of November 1980 at divers places in the Australian Capital Territory, did unlawfully assault Craig John TIGWELL, John Gordon MORRIS,

Christopher Michael CLARKE, Simon Frederick DALTON and Simon Mark GRIFFITHS.

YOU are requested to notify the Commissioner within 21 days after the date of service of this notice on you:

(a) whether you admit or do not admit the truth of the matters alleged to constitute the disciplinary offence; and

(b) if you do not admit the truth of the matters alleged to constitute the disciplinary offence - whether you request that the proceedings be heard and determined by the Disciplinary Tribunal.

YOU may, within 21 days after the date of service of this notice on you, deliver to the Commissioner: -

(a) any written statement that you may wish to make in relation to the alleged disciplinary offence; and

(b) any written statement made by another person that

you may wish to tender in support of your own statement.

YOU are hereby informed that you are entitled to appear at the hearing of the proceedings and, in the case of proceedings before the Disciplinary Tribunal,

you may appear in person or may be represented by a legal practitioner or by some other person."

The notice to Detective Senior Constable Hardcastle need not be set out in full. It alleged that he had been guilty of improper conduct in his official capacity, the nature of the alleged disciplinary offence being stated in the follow- ing terms: - "That you, the said Peter John HARDCASTLE, by act and omission were directly knowingly concerned in the

commission of the said disciplinary offence by the said John Gerrard ALLAN."

The notice addressed to Senior Constable Allan was served on him on 11 June 1982 and by memorandum dated 24 June 1982 he acknowledged receipt of the notice, denied the allegations and requested "that the matter be dealt with by way of the Board". He also stated that Mr. S. Wilcox of the

law firm Snedden, Hall and Gallop would be legally represent-

Detective Senior Constable Hardcastle was served on 9 June 1982. He acknowledged service in a memorandum dated 15 June 1982, stated that he did not admit the matters alleged and expressed his wish to be that the proceedings

be heard and determined by the Disciplinary Tribunal. On 30 June 1982 the Commissioner determined,

in writing, that it would be desirable for the proceedings in respect of both members to be heard and determined by the Federal Police Disciplinary Tribunal and by letter dated

12 July 1982 the Commissioner referred both matters to the

Tribunal under sub-section 67(2) of the Complaints (Australian

The applicants contended that the service of the notices dated 31 May 1982 was not effective to institute disciplinary proceedings because of the events which had preceded their issue. It was submitted that the matters were properly before the Disciplinary Board pursuant to the service on the applicants of the notices dated 8 January 1982 (the substance of which has already been set out), that the Disciplinary Board had no right to decline to exercise the jurisdiction vested in it to hear and determine whether the applicants were, or either of them was, guilty of the disciplinary offences so alleged, and that its failure to hear the matters amounted to a denial of natural justice. It was also submitted that the letter dated 10 March 1982 to which I have already referred indicated that there had been an interference in the proceedings by an officer of the Crown and that the letter evidenced a termination or withdrawal by the Board of the proceedings. Such termination or withdrawal was said to be a bar to further proceedings in respect of the

submissions. It may be that, had appropriate proceedings been taken at the time, the Disciplinary Board may have been directed to hear and determine the matters before its existence was brought to an end on 1 May 1982 by the coming

into operation of the Complaints (Australian Federal Police)

Act 1981 but no such proceedings were taken. In saying that I make no criticism of the applicants as no notice appears to have been given to them that the Disciplinary Board did not intend to commence hearing the charges against them. The absence of such notification, however, is of no significance

The circumstances in which the letter dated 10 March 1982 came to be written were clearly explained in the affidavit of Heather Jane Alder which, although prepared on behalf of the respondents, was tendered on behalf of the applicants. In it Mrs. Alder states that, as an officer of the Department of Administrative Services at the relevant time, her duties were to provide administrative support to the Disciplinary Board. She further states that she prepared a draft of the letter dated 10 March 1982 for the considera- tion of the Chairman of the Disciplinary Board and the letter was sent only after he had agreed with its terms. She ex- plained that, in accordance with normal practice, the letter should have indicated on its face that it emanated from the Disciplinary Board but that, through an oversight, this was not done. Mrs. Alder was not cross-examined - indeed

it was not open to the applicants to do so as the affidavit

had been tendered as part of their case. I am unable to

find any basis for the suggestion that Mrs. Alder, or any

other officer, interfered in the proceedings before the Board or that the Board made a decision to terminate or withdraw the

proceedings. I am satisfied that Mrs. Alder acted in a

A further ground was advanced in support of the submission that the service of the notices dated 31 May 1982 was not effective to institute disciplinary proceedings. It was said that each notice was bad for duplicity in that, in the case of Senior Constable Allan, the notice alleged in the one charge that he was guilty of an unlawful assault on five named persons and, in the case of Detective Senior Constable Hardcastle, the notice alleged in the one charge that he was guilty of being directly knowingly concerned in those five assaults. In my opinion this submission should also be rejected. Assuming that the principles which have evolved in this area in relation to criminal offences are applicable when one is considering disciplinary offences under regulation 18 of the Australian Federal Police (Discipline) Regulations - a matter on which it it unneces- sary for me to express an opinion - I am not satisfied that the notices offended against such principles. Each notice alleged a single disciplinary offence, namely improper conduct and the whole of the conduct relied upon to sustain that charge arose out of one incident albeit extending

over some hours on the evening of 22 November 1980. But

in any event, the only consequence, had the point been taken before, and upheld by, the Federal Police Disciplinary Tribunal, would have been that the Commissioner would have been required to elect with which charge he would proceed.

The point was not in fact taken for reasons which will appear.

The remainder of the applicants' submissions concerned events occurring after the matters had been referred by the Commissioner on 12 July 1982 for hearing and determination by the Federal Police Disciplinary

Michael Henry Peedom, who at the relevant time was the Assistant Deputy Crown Solicitor (A.C.T.) and had the conduct of the disciplinary proceedings against the present applicants, in July 1982 telephoned Mr. Stuart Wilcox of Messrs. Snedden, Hall and Gallop, who were the solicitors for the applicants, and told him that he considered that the notices dated 31 May 1982 served on the applicants should be amended so that each separate alleged assault would be the subject of a separate disciplinary charge.

Mr. Wilcox said that he had no objection to that course. Mr. Peedom then informed Mr. Wilcox that he would arrange for the amended notices to be served on each of the applicants. Mr. Wilcox replied: "Don't worry about that.

The proceedings came before the Federal Police Disciplinary Tribunal for a directions hearing on 28 July 1982. The applicants were informed of the directions hearing and were advised by their solicitor that it was not necessary for them to attend. They accepted this advice and did not attend. Prior to the directions hearing discussions took place between Mr. Peedom and Mr. Wilcox resulting in agreement as to the directions which the Tribunal should be asked to give. At the directions hearing Mr. Peedom appeared for the Commissioner and the applicants were represented by Mr. R. Faulks of Messrs. Snedden, Hall and Gallop. Directions were given, substantially in the form agreed between Mr. Peedom and Mr. Wilcox. The directions given in the proceedings against Senior Constable Allan were as follows:-

"1. Notices under Regulation 19(1) of the Australian Federal Police (Discipline) Regulations to be served by the Commissioner of Police upon the member's solicitors within 7 days.

Any request for further and better particulars of the alleged disciplinary offences to bé served upon the Deputy Crown Solicitor's Office within 14 days.

Answers to any request for further and better particulars to be served upon the member's solicitors within 21 days.

The member to notify the Deputy Crown Solicitor within 21 days whether he admits the truth of the matters alleged to constitute the disciplinary offences.

The alleged disciplinary offences to be heard jointly with charges involving Senior Constable

The matter to be heard on Wednesday, 1 September 1982.

Either party to have liberty to apply to the Tribunal for the making of further directions."

On 31 July 1982 the Commissioner signed ten documents, five addressed to Senior Constable Allan and five addressed to Detective Senior Constable Hardcastle. It is desirable to set out one of the notices addressed to Senior Constable Allan. It reads:-

"AUSTRALIAN FEDERAL POLICE NOTIFICATION OF THE INSTITUTION OF PROCEEDINGS

IN PURSUANCE OF REGULATION 19 OF THE AUSTRALIAN FEDERAL POLICE (DISCIPLINE) REGULATIONS

NOTICE to: SENIOR CONSTABLE JOHN GERRARD ALLAN - NUMBER 834

WHEREAS it appears to me that you, John Gerrard ALLAN, a member of the Australian Federal Police, may have committed a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations;

Commissioner of Police of the Australian Federal Police, hereby institute proceedings against you, the said John Gerrard ALLAN, in relation to that disciplinary offence.

THE nature and particulars of the alleged disciplinary offence are as follows:

That you, the said John Gerrard ALLAN, were guilty of improper conduct in your official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about the 22nd day of November 1980,

at Garema Place, Canberra in the Australian Capital Territory, you did assault Christopher Michael CLARKE.

YOU may, no later than 18 August 1982, deliver to the Commissioner -

make in relation to the alleged disciplinary offence; and

(b) any written statement made by another person that you may wish to tender in support of your own statement.

YOU are hereby informed that you are entitled to appear at the hearing of the proceedings and, in the case of proceedings before the Federal Police Disciplinary Tribunal, you may appear in person or may be represented by a legal practitioner or by some other person."

The other notices addressed to Senior Constable Allan were in similar terms except as to the particulars of the alleged disciplinary offences. Those particulars are referred to earlier in these reasons. The five notices addressed to Detective Senior Constable Hardcastle differed from those addressed to Senior Constable Allan only in that they alleged that Detective Senior Constable Hardcastle was guilty of being knowingly concerned in the commission of the disciplinary offences by Senior Constable Allan and referred to sub-regu- lation 18(2) of the Australian Federal Police (Discipline) Regulations. The nature and particulars of the alleged disciplinary offence as set out in one of the notices should be referred to. That part of the notice reads as follows:- "That you, the said Peter John HARDCASTLE, were. guilty of improper conduct in your official capacity, contrary to the provisions of paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, in that on or about the 22nd day of November 1980, at Garema Place, Canberra in the Australian Capital Territory, you were knowingly concerned in the commission of a disciplinary offence by John Gerrard ALLAN, a member of the Australian Federal Police, in that the said John Gerrard ALLAN was guilty of improper conduct in his official capacity, contrary to paragraph 18(1)(d) of the said Regulations in that on or about the 22nd day

of November 1980, at Garema Place, Canberra in the said Territory, he did assault Christopher Michael

upon Mr. Stuart Wilcox on 2 August 1982 in accordance with the directions given by the Tribunal. The original of each

of the notices was on the same day delivered to the Registrar

wrote to Detective Senior Constable Hardcastle as follows:-

further particulars." The evidence does not establish that a similar letter was sent to Senior Constable Allan. He was, however, informed, either by Mr. Wilcox or Detective Senior Constable Hardcastle, that at the directions hearing 1 September 1982 had been fixed as the date for the hearing of the disciplinary charges

On 13 August 1982 the Deputy Commissioner of Police signed a further notice addressed to Senior Constable Allan alleging a disciplinary offence, the particulars veferring to an assault on Simon Mark Griffiths on 22 November 1980 at the City Police Station, Canberra. That notice was delivered to Mr. Wilcox on 13 August 1982 and

The effect of what was done was not to alter the subject matter of the charges against the applicants or to introduce any new subject matter but to provide greater particularity of the conduct alleged against them by identifying, in relation to each of the persons alleged to have been assaulted, the place where the offending conduct was said to have taken place and by making plain that, in relation to John Gordon Morris, two separate incidents were alleged. In relation to Detective Senior Constable Hardcastle the effect of the notices dated 31 July 1982 was that the allegation that he was knowingly concerned in the assault by Senior Constable Allan on Simon Mark Griffiths was not Maintained. It is true that the notices were headed in such a way as to indicate that they were notifications of the institution of proceedings in pursuance of regulation 19 of the Australian Federal Police (Discipline) Regulations but the fact that they were so described and followed the general form of such notifications cannot affect the sub- stance of the matter, namely that they were a re-statement in amended form of what had been alleged, and understood

by the applicants to have been alleged, in the notices dated

Counsel for the applicants submitted that the notices dated 31 July 1982 were defective in that they failed to comply with paragraph 19(2)(c) of the Australian Federal Police (Discipline) Regulations. That

paragraph requires that a notice under regulation 19 request

the member to whom it is addressed to notify the Commissioner within the period specified in the notice whether he admits

or does not admit the truth of the matters alleged against

him and whether the member requests that the proceedings be heard and determined by the Disciplinary Tribunal. The omission from the notices dated 31 July 1982 of any reference to those matters is explicable on the basis that the proceedings were already before the Tribunal and the Tribunal had given

It was also said that the notices dated 31 July 1982 and 13 August 1982 were not personally served on the applicants. Mr. Wilcox was not called as a witness but I have no doubt that he had authority on behalf of the appli- cants to consent to the form of directions that the Tribunal gave on 28 July 1982 and, in particular, to agree that delivery to the firm of solicitors of which he was a partner of notification of amended charges would be sufficient service upon the applicants. I also have no doubt that the' documents were delivered to him and were accepted by him as having been

served in accordance with the directions given by the Tribunal.

The applicants' submissions on this aspect of the matter depend, in the final analysis, on it being shown that the notices dated 31 July 1982 and 13 August 1982 were

Allan, John Gerrard v Commissioner of the Australian Federal Police & Anor Peter John Hardcastle v Commissioner of the Australian Federal Police & Anor [1983] FCA 204

At a glance

Court

Decision date

Before

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Source

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Judgment (219 paragraphs)

Cited By (1)