Commissioner of Police v McIntyre [1985] AFPDT 5

[1985] AFPOT &

IN THE FEDERAL POLICE )

) No. 6 of 1984

DISCIPLINARY TRIBUNAL )

Member:

_

@ Date:

THE COMMISSIONER OF POLICE

against

SENIOR SERGEANT WAYNE ANDREW MCINTYRE

Mr K.P. Duggan, Q.C.

28 February 1985

DECISION

- THE TRIBUNAL FINDS:

1.

That Wayne Andrew McINTYRE, a member of the Australian Federal Police, is quilty of a disciplinary offence specified in paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, namely

that at Kensington in the State of Victoria, he

was careless in the discharge of his duties in

that in preparing a brief to be submitted to the Deputy Crown Solicitor in relation to matters arising out of a search of premises at 130 Rankins Road, Kensington in the State of Victoria on 28 July

1981 he, being the member in charge of the said... -. search and in charge of the preparation of the

said brief, several days after the said search

---/2

2. of the premises, did orally advise another member of the search team, to wit, Acting Sergeant Harold Charles Lewis BENSON, of his account of the said search in order to assist the said Acting Sergeant Harold Charles Lewis BENSON to compose his statement, but did fail to check the completed statement before

it was submitted to the Deputy Crown Solicitor.

That Wayne Andrew McINTYRE, a member of the Australian Federal Police, is quilty of a disciplinary offence specified in paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, namely that at Kensington in the State of Victoria, he was careless in the discharge of his duties in that in the conduct of a search of premises at 130 Rankins Road, Kensington, in the State of Victoria on 28 July 1981 he:- (a) Ci) failed to make any original notes of the search; (ii) failed to adopt notes made at the time of the search or shortly thereafter; (b) being the member in charge of the search team - (i) entered the premises without ensuring that a search warrant was in the possession of any member of the search team present at that time; (ii) did fail to ensure that all persons found "on the premises were questioned in relation

to drugs found in the premises.

2/3

THE TRIBUNAL ORDERS THAT:~-

1. The proceedings be remitted to the Commissioner of Police for the imposition of a penalty in respect of each breach of discipline in respect of which

the member has been. found quilty.

2. The question of the member's costs be reserved.

BY THE TRIBUNAL

REGISTAAR.

IN THE FEDERAL POLICE No. 6 of 1984

DISCIPLINARY TRIBUNAL

THE COMMISSIONER OF POLICE

against

SENIOR SERGEANT WAYNE ANDREW McINTYRE

REASONS FOR DECISION

MR. K.P. DUGGAN, Q.C.

Senior Sergeant Wayne Andrew McIntyre was charged with two breaches of paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations. The charges were as follows:-

Charge No. AFP 34/8384

"That you, Wayne Andrew McINTYRE, a member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1)(c) of the Australian Federal Police (Discipline) Regulations, namely that at Kensington in the State of Victoria, you were careless in the discharge of your duties in that in preparing a brief to be submitted to the Deputy Crown Solicitor in relation to matters arising out of a search of premises at 130 Rankins Road, Kensington in the State of Victoria on 28 July 1981 you, being the member in charge of the said

search and in charge of the preparation of the said brief:

(a) did fail to check the said brief adequately or at

all before it was submitted to the Deputy Crown Solicitor;

(b) several days after the said search of the premises, did orally advise another member of the search team, to wit, Acting Sergeant Harold Charles Lewis BENSON, of your account of the said search in order to assist the said Acting Sergeant Harold Charles Lewis BENSON to compose his statement, but did fail to check the completed statement before it was submitted to the Deputy Crown Solicitor."

Charge No. AFP 35/8384

"That you, Wayne Andrew McINTYRE, a member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1) (ce) of the Australian Federal Police (Discipline) Regulations, namely that at Kensington in the State of Victoria, you were careless in the discharge of your duties in that in the conduct of a search of premises at 130 Rankins Road, Kensington, in the State of Victoria on 28 July 1981 you -

(a) (i) failed to make any original notes of the. search; (ii) failed to adopt notes made at the time of

the search or shortly thereafter;

(b) being the member in charge of the search team - (i) entered the premises without ensuring that

a search warrant was in the possession of

any member of the search team present at that time;

(ii) at or before entry into the premises did fail to ensure that there was any legal right of entry;

(iii) upon the delivery of a search warrant, did fail to ensure that it was duly executed;

(iv) did fail to ensure that the premises were properly secured upon entry, in that some time after the said entry an offender armed with a pistol was located in the premises;

(v) did fail to ensure that all persons found on the premises were questioned in relation to drugs found in the premises."

The alleged breaches arose out of an investigation undertaken by members of the Southern Region Drug Unit of the Australian Federal Police Force. At the time of the investigation Sergeant McIntyre held the rank of Station Sergeant and had been a member of the Drug Unit since June, 1981.

In July 1981 an informant gave the police information concerning certain persons suspected of possessing Cannabis Resin. The information was discussed at conferences attended by Sergeant McIntyre and it was decided that members of the Drug Unit would attempt to "buy" a quantity of the drug from the suspects. An initial approach on 27th July 1981 was aborted. However, the attempt was renewed on the following day. The informant arranged to meet the suspected drug _ dealers or their agents in the vicinity of a railway station

at Kensington, a Melbourne suburb. Surveillance of the

informant was undertaken by a number of police officers and

"Sergeant McIntyre was patrolling in a police vehicle nearby. Two police officers, Detective Senior Sergeant O'Donovan and Detective Sergeant Bastick, posed as persons interested in buying the drugs. Eventually contact was made between the informant and two of the suspects who were then directed to Sergeant O'Donovan and Sergeant Bastick.

After some hesitation on the part of the suspects, the informant was permitted to view the drugs at a house near the railway station. As soon as the house was identified Sergeant O'Donovan and Sergeant Bastick went to a nearby hotel and aranged for a search warrant to be issued by the proprietor who was a Justice of the Peace. In the meantime Sergeant McIntyre had driven to the house and was then notified by Sergeant O'Donovan over the police radio that the warrant had been issued. Sergeant McIntyre then entered the premises with other police officers.

The evidence led before me established that Sergeant McIntyre and Detective Acting Sergeant Benson were the first police officers to arrive at the house and also the first to enter the premises. They entered through the front door and Sergeant McIntyre proceeded to a kitchen at the rear of the house. He observed approximately 7 kilograms of Cannabis Resin on a table in the kitchen. A woman named Davies was standing beside the table and Sergeant McIntyre questioned her. She said she could tell him nothing about the drugs. While Sergeant McIntyre was in the kitchen a man named Spong was apprehended by other police officers as he was . attempting to leave the premises. A third person, Nuri, was

found hiding behind clothing which was suspended from a rail

in the corner of a bedroom some twenty or thirty minutes after the arrival of the police.

In due course Davies, Spong and Nuri were charged with possession of Cannabis Resin contrary to Section 233B(1)(ca) of the Customs Act 1901. However, at the conclusion of the preliminary examination on 9th December 1982 the learned magistrate found that there was insufficient evidence to put the accused persons on trial and they were discharged. Subsequently the three defendants were re-arrested and committed for trial at the conclusion of a second preliminary examination held in February and March, 1984.

At the hearing before me Sergeant McIntyre said nothing in answer to the charges, although he had given written answers to the allegations in the course of the investigation into the disciplinary offences and had submitted himself to interrogation. I make it clear that I do not make any adverse inference against the officer based upon his failure to give evidence, although I am entitled to take into account the fact that certain evidence may be uncontested. Furthermore, in making findings on issues of fact and in determining whether there have been any breaches of discipline, I have borne in mind that the Commissioner pears the onus of proof and that the standard of proof is as

stated in Scanes v. Commissioner of Police for the

Australian Capital Territory (1974) 3 A.C.T.R. 20 at pp.

26-27. The disciplinary charges render it necessary for me to consider Sergeant McIntyre's role in the operation and, in

particular, to determine whether he was "in charge" of the

search. This issue was the subject of considerable debate at the hearing before me. Mr. Hayes, for the Commissioner, contended that Sergeant McIntyre was in charge of "all aspects of the search operation" and that this task had been allotted to him during certain briefing sessions which Sergeant McIntyre had attended prior to the search of the premises. Mr. James, for Sergeant McIntyre, argued that there was a want of clear direction as to who was to be in charge of various aspects of the operation and he contended that Sergeant McIntyre's instructions were "to look, listen and learn".

In an interview dated 16th August 1983 with Detective Acting Inspector R.A. Snape of the Internal Investigation Division, Sergeant McIntyre was asked who was in charge of the search. He replied:-

"Person in overall charge was Acting Detective Inspector EGAN. It was not until some time after entry to 130 Rankins Road was affected (sic) that I decided to assume control. I made that decision because it had then become evident that neither EGAN nor Detective Sergeant ODONOVAN were going to attend and assume that responsibility. Up to the time I assumed command I acted on the premise that I was there primarily to look, listen and learn."

It was not disputed that Sergeant McIntyre was the senior officer in rank in attendance at the house. Although Inspector Egan had taken part in briefing sessions, there was no suggestion that he (Egan) played an active role in the negotiations with the suspects, the surveillance or the search.

Sergeant Bastick, in a statement tendered by consent

(Exhibit P7), stated:-

"All surveillance officers were under the immediate direction of Det. Stat. Sgt. McINTYRE in regard to the intercept and search, but with respect to the ' BUY ' they were under the direction of Det. Sen. Sgt. O'DONOVAN."

When asked to expand on that aspect of his statement in evidence, Constable Bastick, referring to a briefing attended by Inspector Egan, Sergeant O'Donovan, Sergeant McIntyre and himself, said:-

"Teams had been structured such that there were federal police officers with customs officers who were working with us at the time because of the armament problem, and consultation in developing those teams was that Mr. McIntyre - and I can only say, sir, that it is my firm belief with the way that discussion had taken place, the way the briefing had taken place there would have been no doubt in anybody's mind that Mr. O'Donovan was in charge of the buy. and Mr. McIntyre was in charge of the surveillance. I cannot specifically recall any fact being given to suggest that, but I am in no doubt and I do not think anybody else was, sir."

Sergeant O'Donovan stated in evidence that Sergeant McIntyre was nominated "in charge of the whole operation." His evidence continued:-

"By whom?---By Egan. McIntyre, with Bastick and myself in the planning stages. It is an operational order that is normally put out.

It may be, but I have to deal with this particular case?---In that respect, it was made very, very clear to everybody concerned that the officer in charge was Sgt McIntyre and that I would take charge of the undercover buy area."

I accept the evidence of the two witnesses and when it is considered along with Sergeant McIntyre's actions at the house, no doubt is left as to his role. I find, therefore, that Sergeant McIntyre was "in charge" of the search of the

premises and that this role had been allotted to him prior

to his arrival at the house.

e

I turn then to a consideration of each charge. AFP 34/8384

Following the arrest of Davies, Nuri and Spong a brief was prepared for transmission to the Deputy Crown Solicitor. In accordance with usual practice it contained the statements of potential witnesses. The physical compilation of the brief was carried out by Constable Benson. He stated in evidence that he did so under the direction of Sergeant McIntyre and that he submitted the brief to Sergeant McIntyre after it had been completed. The Drug Unit file on the prosecution was tendered (Exhibit P2). This exhibit establishes that the brief was forwarded from Constable Benson to Sergeant O'Donovan on llth January 1982 and thence to Sergeant McIntyre on the same date. The accompanying minutes and the passage of the brief demonstrate the chain of command and support Constable Benson's evidence. I find, therefore, that Sergeant McIntyre was in charge of the preparation of the brief.

Paragraph (a) of the particulars alleges carelessness in failing to check the brief adequately or at all before it was submitted to the Deputy Crown Solicitor.

The only evidence to support the allegation in paragraph (a) concerns the statement of a Constable Antoniadou. A portion of the material which this officer had forwarded for inclusion in his statement had been left out of the typed version in the brief. However, the omission was not apparent on the face of the statement and I am of the view that it would be unreasonable to expect that Sergeant

McIntyre should have realised that Constable Antoniadou

could have given this evidence but that it was omitted from his statement. Accordingly, the disciplinary charge cannot receive any support from the allegation in paragraph (a). Paragraph (b) complains of a failure by Sergeant McIntyre to check his own statement in the brief before it was passed on to the prosecutor. A statement under Sergeant McIntyre's name appears at page 10 of the Drug Unit file (Exhibit P2). It was this statement which was forwarded to 'the Deputy Crown Solicitor. The statement purports to record various observations by Sergeant McIntyre together with short conversations he had with two of the defendants. Sergeant McIntyre's evidence at the first preliminary examination was tendered in evidence before me (Exhibit P8). It appears from his cross-examination at that hearing that certain facts had been incorrectly recorded in his statement (see, for example, the topics dealt with at pages 81 and 93 of Exhibit P8). Sergeant McIntyre stated at that hearing that he had not made any notes himself in relation to the investigation but simply told Constable Benson what he had seen and heard (Exhibit P8 page 50). He said he could not remember when he had told Benson about these matters but it was "not more than days" (ibid at page 50). He was asked when he had first seen the statement produced by Constable Benson and he replied:- "I don't recall ever having seen it actually." The cross-examination continued:- "So that to this day you have never seen the statement - - -?---No, I didn't say

that. What I said was I don't recall having seen it.

Sorry, I am being a bit vague now. You do not Know whether you have seen the statement that is on the brief under your name?---I would say I have but I

don't recall having seen it.

When, if you have seen it, would that have been?---It could have been any time

between the actual event and that the brief was completed submitted."

(ibid at page 50)

Later in his evidence Sergeant McIntyre said

recalled seeing a copy of his statement four weeks

gave evidence at the first preliminary examination.

Sergeant McIntyre was questioned about this matter

the time and

he

before he

in the

interview with Inspector Snape (Exhibit P3). The interview

on this topic proceeded as follows:-

"Q35. Did you supervise the compliation of the

brief.

A. Having regard to the fact that BENSON was reporting directly to a number of commissioned officers in the Drug Unit about this matter and other matters my supervisory roll was minimal. There were times when BENSON was being given guidance

and instructions by commissioned

officers

the details of which I had to seek from

BENSON if I became aware that he

had

received guidance or instructions. This is further complicated by the fact that I only supervised BENSON for one week in three. I am aware that other members : acting in the rank of Station Sergeant in the Drug Unit felt the same concern and

powerlessness over BENSONS work.

I dont

imply any criticism of BENSON. He was only doing what he was encouraged or permitted

to do.

Q36. Did you examine the brief of evidence before it was submitted to the Deputy

Crown Solicitors Office. A. _I dont recall.

Q37. Did you prepare your own statement for the

brief of evidence. A. No.

Q38. How then was the statement for NURI, SPONG DAVIES brief prepared. A. I told BENSON what transpired. He

committed it to writing and it was joined with the substance of a statement provided to the Victoria Police for their

prosecution against Robert Hilmi NURI, re felon in possession of a pistol.

Q39. Did you examine your statement before the completed brief of evidence was submitted to the Deputy Crown Solicitors Office.

A. I dont specifically. recall but I would think so yes."

In my view, Sergeant McIntyre's evidence on this topic at the preliminary examination was vague and it is most significant that no errors in the statement were corrected. If he had checked the statement those errors would have been obvious. I find that his recollection is faulty and that he failed to check his statement before it was submitted to the Deputy Crown Solicitor. This failure was undoubtedly careless. His evidence was of considerable importance. The failure to take notes, followed by the oral communication of observations and conversations to Benson, necessitated effective and prompt checking to ensure that nothing further was done to detract from the accuracy of the statement. The difficulties created by this failure are readily apparent upon a reading of the evidence taken at the preliminary examination..

I find that charge AFP 34/8384 is proved insofar as it is based on the particulars in paragraph (b).

AFP 35/8384 Paragraph (a) alleges that Sergeant McIntyre failed to

make any original notes of the search and failed to adopt

notes made at the search or shortly thereafter.

I have dealt with most of the relevant evidence on this aspect in considering charge No. AFP 34/8385. It was not disputed that Sergeant McIntyre did not make original notes himself; nor was it suggested that he "adopted" notes made by any other officer present in order to qualify himself to refresh his memory from those notes. Does this failure amount to carelessness?

In my view it was not incumbent upon the officer to make notes at the time of his observations and conversations. However, in all the circumstances of the investigation, he should have made notes himself when the facts were fresh in his memory or, alternatively, qualified himself to use another officer's notes. It is trite to observe that an investigator's role does not end with an arrest. He has a duty to ensure that, in the event of a prosecution, he can provide the Court with accurate and reliable evidence of his observations and conversations with alleged offenders. Properly prepared notes are an essential step in this process and I regard the failure to perform that task in this case as carelessness in the discharge of duty. I find the charge proved insofar as it relates to the particulars in paragraph (a).

The allegations in paragraph (b)(i), (ii) and (iii) concern the search warrant for the premises. I have already recorded the fact that once the premises were identified Sergeant O'Donovan and Sergeant Bastick applied to a Justice of the Peace for a search warrant. The premises were not entered until the search warrant was issued and Sergeant

McIntyre was advised of that fact. The warrant was addressed

to Sergeant Bastick (Exhibit P6) and stated in the usual

form:-

"YOU ARE HEREBY AUTHORISED with such assistance

as you think necessary to enter at any time the said premises...".

Sergeant Bastick and Sergeant O'Donovan arrived after the premises had been entered. Sergeant Bastick handed the warrant to Sergeant McIntyre who put it in his pocket. Bastick did not enter the premises because he was concerned that the informant would be identified as such if it was revealed that he (Bastick) was a police officer.

The issue of a warrant is no formality. It invests the person to whom it is directed with far-reaching powers of entry, search and seizure. The wording of the warrant and Section 10 of the Crimes Act, 1914 make it clear that the primary authority is given to the person named in the warrant. It could not be argued with any justification that the search and. seizure in this case were carried out by Sergeant Bastick. I find that Sergeant McIntyre was careless in entering the premises in the absence of the officer to whom the warrant was directed. Nevertheless I regard as important mitigating factors the fact that the warrant was at the house within two or three minutes of its issue and that, according to Sergeant Bastick, when the warrant was eventually handed over, Sergeant McIntyre advised Bastick that he would have to stay at the premises because he was the person named in the warrant. In view of the above finding the allegation in paragraph (a)(i) has been established. Sub-paragraphs (ii) and (iii) are closely

related to sub-paragraph (i) and in my view there has been

no additional breach of duty in respect of either of these particulars.

Paragraph (b)(iv) alleges a failure "to ensure that the premises were properly secured upon entry, in that some time after the said entry an offender armed with a pistol was located in the premises."

This allegation arises out of the circumstances surrounding the apprehension of the man Nuri. I have described his hiding place and observed that he was not found until the search had been under way for twenty or thirty minutes. He was apprehended by Sergeant McIntyre after another officer had detected him. Nuri dropped a revolver onto the floor as he was being removed from his hiding place. I find that there is insufficient evidence upon which to base a breach of care on this ground. It would appear that all police officers at the house were aware of the possibility of one of the alleged offenders being armed. This particular offender was doing his best to avoid detection and his hiding place was not obvious. Although he was not found until some time after the search had commenced, I am unable to say that the failure to detect him earlier was occasioned by any action or inaction on the part of Sergeant McIntyre.

Paragraph (b)(v) is based upon an alleged failure to ensure that all persons found on the premises were questioned in relation to drugs which had been found in the kitchen. At the time of the entry of the police on the premises there were at least four persons present in a front

room of the house. They were identified in evidence as

Mackie, De Linelle, Wilson and Grant. They were not interviewed by the Federal Police at the time of the search although they were subsequently charged by the State Police with a drug offence. This offence did not relate to the drugs found in the kitchen of the house. Relevant to this alleged breach was a conversation which Constable Antoniadou said he heard during the search of the house. His evidence was as follows:- "It would have been at least 30 to 40 minutes after Mr Nuri had been found. I walked in I suppose halfway through the conversation and I only heard Mr McIntyre saying, no, we will do it our way, I have contacted the state police, the four people in the front bedroom will get charged with the stuff in the front bedroom, and the rest will get charged with the stuff in the kitchen. Mr Benson then turned around and said - his exact words I cannot say, but something to the effect of that we should charge them all with conspiracy to traffic and possession under the Customs Act, and it should be one of our people and one state policeman interviewing each person in the house; and Mr McIntyre said, we will do it my way and we will do it this way; and Mr Benson just turned around and walked away." Three of these persons were interviewed on 8th January 1982 but their statements were of no use to the prosecution.

The defendant Davies was the only person found in the kitchen at the time the drugs were located. In order to prove the possession charge it would have to be established that the offenders had exclusive physical control of the drugs. All occupants of the house were potential defendants or witnesses. In my view the importance of interviewing such persons at the time of the event should have been obvious to any police officer of Sergeant McIntyre's experience. I find that there was carelessness on the part of Sergeant McIntyre

in failing to ensure that the other occupants were

questioned in relation to the drugs found in the kitchen.

-15 -

In summary, therefore, I find charge No. AFP 34/8384 proved, but only insofar as it is based on the particulars in paragraph (b). I find charge No. AFP 35/8384 proved in respect of particulars a(i), a(ii), b(i) and b(v). The breaches of discipline which I have found established are referred to the Commissioner for penalty.

I would add two comments. First, my findings should not be taken as authority for the proposition that these breaches of discipline resulted in the failure of the prosecution at the preliminary examination. Secondly, there was a considerable amount of evidence which established that Sergeant McIntyre had very little experience in drug investigations at the relevant time. I took that evidence into account in considering whether the charges had been established and I would regard it (with

respect to the Commissioner) as being particularly relevant

K.P. DUGGAN, Q.C.

to the question of penalty.

Member