Re Ronald Alan Harris v the Commissioner of Police (Australian Federal Police) [1984] FCA 22 (21 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: RONALD ALAN HARRIS
And: THE COMMISSIONER OF POLICE (AUSTRALIAN FEDERAL POLICE)
No. VG141 of 1983
Police

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.
McGregor J.
Neaves J.

CATCHWORDS

Police - Federal Police Disciplinary Tribunal - Disciplinary offences - Appeal on question of law - Statutory direction that question of law to include whether sufficient evidence to justify a finding of fact by Tribunal - Tribunal not bound by the rules of evidence - Standard of proof required - Examination of nature and sufficiency of the evidence upon which the Tribunal acted - Role of appellate court - Credibility of witnesses a matter for Tribunal - Meaning of "matter" in regulation 15 of the Australian Federal Police (Discipline) Regulations - Whether necessary to prove knowledge of the "matter" on the part of the member - Lack of conformity between particulars of the disciplinary offence and the findings made by the Tribunal

Complaints (Australian Federal Police) Act 1981, sections 78,79 Australian Federal Police (Discipline) Regulations, regulations 15 and 18(1)

Scanes v. Commissioner of Police for the Australian Capital Territory (1974) 3 A.C.T.R. 20

Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336

Gardiner v. Land Agents Board (1976) 12 S.A.S.R. 458

HEARING

MELBOURNE
21:2:1984

ORDER

1. Paragraph 1 of the decision of the Federal Police Disciplinary Tribunal dated 29 April 1983 be set aside and the following paragraph be substituted - "Ronald Alan Harris is guilty of a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those regulations, namely regulation 15, in that at Melbourne in the State of Victoria on divers dates during the period between 1 May 1980 and 31 March 1981, the said Ronald Alan Harris directly accepted gifts of meat from Steigers Meat Supply (Australia) Pty. Ltd., Melbourne, Victoria, that company being concerned indirectly with a matter in which the Australian Federal Police was interested or concerned."

2. Otherwise the appeal be dismissed.

3. The appellant pay the respondent's costs of the appeal.

DECISION

In this appeal I have had the advantage of reading the joint reasons for judgment of McGregor and Neaves JJ.. I agree with the orders proposed by them and that leave to amend the notice of appeal should be refused. I agree generally with their reasons for judgment.

This is an appeal on questions of law by Ronald Alan Harris ("the appellant") from a decision of the Federal Police Disciplinary Tribunal ("the Tribunal") given on 29 April 1983. The Tribunal found that the appellant, who is, and was at all material times, a member of the Australian Federal Police, was guilty of disciplinary offences under the Australian Federal Police (Discipline) Regulations ("the regulations") and remitted the proceedings to the Commissioner of Police ("the respondent") for the imposition of a penalty on the appellant in respect of those breaches of discipline.

The disciplinary proceedings against the appellant were instituted pursuant to sub-regulation 19(1) of the regulations by two notices signed by the Acting Commissioner of Police and bearing date 20 September 1982. The first of those notices alleged a disciplinary offence under paragraph 18(1)(a) of the regulations and was in the following terms -

"WHEREAS it appears to me that you, Ronald Alan HARRIS, a member of the Australian Federal Police, may have committed a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely regulation 15;

TAKE NOTICE that I, John Charles JOHNSON, the Acting Commissioner of Police of the Australian Federal Police, hereby institute proceedings against you, the said Ronald Alan HARRIS, in relation to that disciplinary offence.

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

That you, Ronald Alan HARRIS, a member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those Regulations, namely regulation 15, in that at Melbourne in the State of Victoria on divers dates during a period between 1 May 1980 and 31 March 1981, you, the said Ronald Alan HARRIS, directly accepted gifts of meat from a person or persons unknown employed by, or at the premises of, Steigers Meat Supply (Australia) Pty. Ltd., Melbourne, Victoria, such person or persons being concerned indirectly with a matter in which the Australian Federal Police was interested or concerned."

The second notice alleged a disciplinary offence under paragraph 18(1)(d) of the regulations and read -

"WHEREAS it appears to me that you, Ronald Alan HARRIS, 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;

TAKE NOTICE that I, John Charles JOHNSON, the Acting Commissioner of Police of the Australian Federal Police, hereby institute proceedings against you, the said Ronald Alan HARRIS, in relation to that disciplinary offence.

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

That you, Ronald Alan HARRIS, a member of the Australian Federal Police, were guilty of a disciplinary offence specified in paragraph 18(1)(d) of the Australian Federal Police (Discipline) Regulations, namely improper conduct in your official capacity, in that in the month of December 1980 at Melbourne in the State of Victoria, you, the said Ronald Alan Harris, attempted to induce Rene Theodore VAN KUYK, a member of the Australian Federal Police, to join you in an enterprise concerned with the obtaining of free meat, or the benefit of meat at reduced costs, in exchange for the passing of information to a person or persons unknown, being information that the said Rene Theodore VAN KUYK had acquired, or may acquire, in the course of his duties relating to the affairs or investigations of the Australian Federal Police into the meat industry, such person or persons unknown not being authorized or entitled to receive that information."

Paragraphs (a) and (d) of sub-section 18(1) of the regulations provide -

"18. (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;

. . . .

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

. . . . "

The reference in paragraph 18(1)(a) to Division 1 is a reference to Division 1 of Part II of the regulations. That Division is headed "Conduct of Members" and includes regulation 15 which provides -

"15. A member shall not directly or indirectly solicit or accept a gift or gratuity from a person concerned directly or indirectly with any matter in which the Australian Federal Police, or the member in the performance of his duties, is interested or concerned."

The appeal to this Court is brought pursuant to section 79 of the Complaints (Australian Federal Police) Act 1981 ("the Act") which provides that a person who was a party to a proceeding before the Tribunal may appeal to the Court, on a question of law, from a decision of the Tribunal in that proceeding. The jurisdiction of the Court is to be exercised by the Court constituted as a Full Court (sub-section 79(3)). The Court, in determining the appeal, is to make such order as it thinks appropriate (sub-section 79(4)). By virtue of the operation of paragraph 78(b) of the Act, a reference to a question of law is to be construed as including a reference to the question whether there was sufficient evidence to justify a finding of fact by the Tribunal.

The Tribunal found, in relation to the disciplinary offence under paragraph 18(1)(a) and regulation 15 of the regulations -

(a) that the appellant received free meat from Steigers Meat Supply (Australia) Pty. Ltd. ("Steigers") on a number of occasions during the period between 1 May 1980 and 31 March 1981;

(b) that during that period the Australian Federal Police had a continuing interest or concern in a matter, namely a general investigation into the meat industry, that indirectly involved Steigers;

(c) that the appellant had actual knowledge of the involvement of Steigers in the matter in which the Australian Federal Police was interested or concerned.

In relation to the disciplinary offence of improper conduct under paragraph 18(1)(d) of the regulations, the Tribunal found -

(a) that the appellant attempted to induce Rene Theodore Van Kuyk, then a member of the Australian Federal Police, to take part in the obtaining of free meat in return for the passing of information concerning inquiries into the meat industry being undertaken by the Australian Federal Police;

(b) that to act in that way constituted on the part of the appellant improper conduct in his official capacity.

Initially it was argued before this Court that the Tribunal lacked jurisdiction to hear the proceedings instituted by the notices dated 20 September 1982 because the offences were alleged to have occurred at times prior to the establishment of the Tribunal. That argument was, however, abandoned and we need not consider it further.

Counsel for the appellant submitted that the evidence before the Tribunal was insufficient to entitle it to reach the findings it made. In particular, it was said that the evidence of Sergeant R.J. Brown should have been given no weight at all; that it was only an "opinion" that the witness formed as to the appellant's involvement in obtaining free meat from Steigers. Counsel also submitted that Mr. Van Kuyk was a person of no credibility because of various matters to which he referred including the circumstances in which he resigned from the Australian Federal Police. He further contended that the evidence of the repetition to Sergeants Barrow, Kennedy and Shepherd of his alleged conversation with the appellant ought not to have been accepted by the Tribunal as increasing the weight to be attached to Mr. Van Kuyk's evidence.

Counsel for the appellant also sought to support his submission that the Tribunal had acted on insufficient evidence on another basis. It was conceded that the Tribunal had proceeded, and correctly proceeded, on the basis that the respondent bore the onus of proof and that the standard of proof was as stated by Fox J. in Scanes v. Commissioner of Police for the Australian Capital Territory (1974) 3 A.C.T.R. 20 at pp. 26-7. Counsel referred, however, to the well known passage in the judgment of Dixon J. (as he then was) in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 at pp. 361-2

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

It was submitted that, although the Tribunal had correctly stated the principle as to the standard of proof to be applied, it had reached a state of reasonable satisfaction adverse to the appellant on the material before it without properly applying the requisite standard of proof, i.e. without giving adequate weight to the seriousness of the allegations made against the appellant or the gravity of the consequences flowing from such adverse findings. Greater weight, he argued, should have been given to the appellant's denials.

In support of the submission that the Tribunal, having regard to the serious matters into which it was inquiring, should not have cut across the rules of evidence to the extent to which it did, counsel for the appellant relied upon Gardiner v. Land Agents Board (1976) 12 S.A.S.R. 458, a decision of Walters J. sitting as the Supreme Court of South Australia.

In relation to the disciplinary offence under paragraph 18(1)(a) and regulation 15 of the regulations, counsel for the appellant submitted that there was at the material time no relevant matter within the meaning of that expression in regulation 15. This was in the context that the Tribunal rejected a submission that regulation 15 should be restricted "to a situation where there is an active investigation (or a file) or at least a discussion of the particular company or person that is named in the charge (in this case, Steigers Meats)". The Tribunal found such a restricted interpretation of the regulation was not justified and that a "general investigation into the meat industry of which the particular company alleged is a part - as long as there existed some connection with the company involved - would be sufficient to establish that there was a matter in which the Australian Federal Police was interested or concerned".

It was argued that the regulation applies only to a situation where there is at the relevant time an active investigation or enquiry being undertaken by the Australian Federal Police into the subject comprising the matter. In particular it is not sufficient, so the argument ran, that the police should have a passing interest or even a general interest in the particular area, industry or topic. It was also said that there was insufficient evidence before the Tribunal to justify the finding that Steigers was involved in a matter of interest or concern to the Australian Federal Police at the relevant time.

For the respondent it was submitted that the Tribunal had not fallen into error. It was asserted that the Tribunal was justified in treating as admissible before it the evidence to which objection was taken by the appellant and that that evidence was sufficient to support the Tribunal's findings. Counsel submitted that the test to be applied in determining whether the Tribunal's findings should be set aside was that adopted by Viscount Simonds in Edwards (Inspector of Taxes) v. Bairstow [1955] UKHL 3; (1956) A.C. 14 at p. 29. He referred also to Collins v. Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 A.L.R. 598 at p. 601.

Counsel for the respondent also presented a detailed and wide-ranging argument in relation to regulation 15 of the regulations. He canvassed its historical background and submitted that, on its proper construction, it was not incumbent upon the respondent to prove before the Tribunal that during the relevant period the appellant had knowledge of the interest or concern on the part of the Australian Federal Police in Steigers. He referred to Sweet v. Parsley [1969] UKHL 1; (1970) A.C. 132; Sherras v. De Rutzen (1895) 1 Q.B. 918; Iannella v. French [1968] HCA 14; (1968) 119 C.L.R. 84; Cameron v. Holt [1980] HCA 5; (1980) 142 C.L.R. 342; and The Queen v. Reynhoudt [1962] HCA 23; (1962) 107 C.L.R. 381. Further, he contended that the defence of "honest belief" in the sense referred to in Proudman v. Dayman [1941] HCA 28; (1941) 67 C.L.R. 536 was not available in respect of a breach of regulation 15 and, in any event, was not open on the facts. He also submitted that a wide meaning should be afforded to the word "matter" in that regulation and that it should not be restricted to an active investigation or inquiry into the subject comprising the "matter".

As will appear, we have not found it necessary in order to resolve the issues that arise in this appeal to reach a conclusion upon a number of the interesting and carefully presented submissions upon regulation 15.

Much of the argument before us turned on the nature and sufficiency of the evidence upon which the Tribunal acted. The main features of that evidence were -

1. Evidence by Sergeant R.J. Brown of a discussion he had with Inspector Burke in April 1980 concerning the appellant as a possible replacement for Sergeant Brown in respect of the "Steiger's free meat enterprise" and of a conversation with the appellant in June 1982 when the appellant "gave the inference" that the appellant was accepting free meat at Steigers.

2. Evidence by Mr. Van Kuyk (who at the material time was a member of the Australian Federal Police) of a conversation he had with the appellant shortly before Christmas 1980. That conversation, according to Mr. Van Kuyk, contained an invitation by the appellant to the witness to go to a place in Northcote to get free meat in return for telling some person at that place what was going on in relation to meat inquiries.

3. Evidence by Mr. Van Kuyk, Sergeant Kennedy and Sergeant Shepherd that Mr. Van Kuyk discussed the conversation with the appellant with Sergeants Barrow and Kennedy and later, on 21 January 1981, with Sergeant Shepherd.

4. Evidence by Sergeant Shepherd that in March 1981 he followed the appellant to the premises of Steigers at Northcote, that he saw him park near the meatworks but he did not actually see him enter or leave those premises. He saw the appellant return to his vehicle a short time later.

5. Evidence by the appellant that he went to Steigers on three to five occasions from about 1980 to the early part of 1981 though he claimed it was to purchase meat for his daughter's dog.

It will be necessary to refer to some of this evidence in greater detail later in these reasons.

The Tribunal regarded Sergeant Brown and Mr. Van Kuyk, whose credit was attacked, as credible witnesses. The Tribunal was not prepared to accept much of the evidence given by the appellant. There was no attack upon the veracity of Sergeant Kennedy or Sergeant Shepherd.

Reference has already been made to paragraph 78(b) of the Act which brings within the concept of a question of law the question whether the evidence before the Tribunal was sufficient to justify the conclusion to which it came. This provision does not, we think, require this Court to consider afresh the evidence which was before the Tribunal with a view to determining whether the Court would have come to the same conclusion as the Tribunal had it been hearing the matter in the first instance. It is clear that the legislature intended that the Tribunal should be the arbiter of disputed questions of fact, the role of this Court being to set aside the decision of the Tribunal only if it is satisfied that the Tribunal acted without any evidence or any sufficient evidence or upon a view of the facts which could not reasonably be entertained. Further, paragraph 78(b) does not give this Court a role in determining the credibility of the witnesses who are called before the Tribunal which has the advantage of observing their demeanour. It would be a misuse of language to regard a decision to set aside a finding by the Tribunal as to the credibility of a witness as being a decision as to the sufficiency of the evidence before the Tribunal. Paragraph 78(b) of the Act is not directed to any such issue.

In considering the sufficiency of the material before the Tribunal to support the findings of fact it made, the Court must also have in mind that, by virtue of sub-section 76(3) of the Act, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate. This provision enables the Tribunal to receive and act upon material which would not be admissible in a court of law applying the rules of evidence. It does not, however, entitle the Tribunal to receive and act upon material which is of no probative value.

We turn first to the evidence of Sergeant Brown. As mentioned above he gave evidence of a conversation with Inspector Burke in April 1980 in which Inspector Burke raised the question of a replacement for Sergeant Brown "in terms of obtaining meat from Steigers".

Sergeant Brown also deposed to a conversation with the appellant in June 1982 concerning free meat from Steigers. The conversation was said to have taken place at Waltons' Coffee Shop. Sergeant Brown said he informed the appellant that he intended to see counsel assisting the Royal Commission into the Meat Industry (Mr. McPhee Q.C.), and make a full statement to him. He said that he was unable to recall the exact words used by the appellant but "he gave the inference, or I formed the opinion, that he was accepting free meat in company with Inspector Burke". The following questions and answers should be set out in full -

"Q. It was just an assumption that might have arisen from the conversation?

A. It was the assumption, yes, that is the point I am trying to make. I cannot recall his words.

Q. I take it that assumption arose from the fact that Sergeant Harris was concerned about his situation when you had advised him that you were going to Mr. McPhee?

A. That is so, yes.

Q. So it was an implication rather than any direct words used?

A. That would be so, yes."

In cross-examination Sergeant Brown said that he formed the opinion that the appellant was receiving free meat as a result of what he was told by Inspector Burke and that his subsequent conversation with the appellant confirmed what he had been told by the Inspector.

Sergeant Brown was also asked questions concerning a record of interview with Detective Sergeant Lewington on 24 August 1982. Question 109 in that record of interview and the answer given by Sergeant Brown is as follows -

"Q. 109 Were you specifically told by Harris that he had received free meat from Steigers?

A. Yes."

He was asked in his evidence before the Tribunal whether he departed from anything he had said in that record of interview. He answered: "I do not depart from it, no."

Mr. Van Kuyk was the other major witness on whose evidence the Tribunal relied. He gave evidence that he was formerly a member of the Australian Federal Police holding the rank of Detective Sergeant. He said that at approximately Christmas 1980 he had a conversation with the appellant the substance of which was as follows -

"Q. Can you recall what was said during that conversation?

A. I cannot remember the exact words, but Sergeant Harris asked me if I wanted to go to a meat place in Northcote.

Q. And did you ask him what purpose that was for?

A. Yes, he said to get some free meat.

Q. And did you ask him any more details as to an explanation as to how he came to get this free meat?

A. Yes, I said, well, what is happening, I asked for an explanation. He said, well, he has taken over from Browny and Burkey and he goes to this meat place in Northcote to obtain free meat.

Q. Did he mention any particular establishment?

A. Not that I can recall, no.

Q. Was anything said by Harris as to what he had to do in order to get this free meat?

A. From memory, he said all he had to do was tell somebody at the meat place what was going on in relation to meat inquiries and then he would obtain meat.

. . . .

Q. Did he say how he came to take over or take advantage of his perk?

A. He mentioned that he was taking over from Browny and Burkey and that - he was shortly to go on leave and he wanted someone to take his place whilst he was going on leave, and then when he came back off leave he would resume with whoever was taking his place."

Mr. Van Kuyk said that later the same day or shortly thereafter he relayed the text of the conversation to Sergeant Kennedy and Sergeant Barrow. He further said that he did not report the matter to any of his senior officers "officially". Later on he mentioned the matter to Sergeant Shepherd. He also gave evidence that he resigned from the Australian Federal Police on 19 July 1982. He said this was due to evidence given by him to the Royal Commission and it followed a suggestion to him by a Superintendent in the Australian Federal Police that it would be better for him to resign.

Reference was made before the Tribunal to the evidence given by Mr. Van Kuyk before the Royal Commission into the Meat Industry. On 14 July 1982 he was asked a series of questions concerning his attendance at Moonee Valley Racecourse investigating counterfeit money. He was asked questions concerning a certain Mr. Marino and the taking of a quantity of hashish from him. Mr. Van Kuyk initially said that he had no recollection of hashish being involved. Evidence concerning the incident was given by other police officers and Mr. Van Kuyk gave further evidence on 16 July 1982 saying that the evidence given by the other officers had prompted his recollection that there was some hashish involved on the day in question. He agreed that his conduct before the Royal Commission and the circumstances surrounding the incident mentioned led to his resignation from the Australian Federal Police.

As to the argument based on Gardiner v. Land Agents Board, supra, that decision was concerned with an inquiry by the Land Agents Board into the conduct of a licensed land agent, a registered manager and a registered land salesman each of whom was alleged to have been guilty of dishonesty or conduct indicating that he was not a fit and proper person to act as a land agent, manager or salesman. The allegations made against the appellants had been made, as the learned Judge said at p. 471, in "vague and general terms" which could "hardly be said to be fair, sufficient or specific". Particulars had not been sought and the inquiry into the case against each of the three appellants was conducted as one inquiry, to their prejudice. The Court also found that there had been a failure to observe the principles of natural justice. The circumstances disclosed in that case were quite different from those in the present matter where the allegations are not vague, particulars have been given and there is but one person whose conduct is under scrutiny. We are of the view that little assistance is to be gained from a consideration of that decision. It is, however, perhaps worth quoting what the learned Judge said at p. 475 -

"I must not be taken as asserting the proposition that a statutory tribunal is bound by technical rules of evidence; or that a court-like hearing is required. There is no reason why hearsay should not be admitted by such a tribunal, where it can legally be regarded as reliable and probative. 'Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law' (T.A. Miller Ltd. v. Minister for Local Government (1968) 1 W.L.R. 992, per Lord Denning M.R. at p. 995). Nevertheless, as Willmer L.J. pointed out in R. v. Deputy Industrial Injuries Commissioner (1965) 1 Q.B. 456, at p. 476, the information upon which a tribunal acts, 'whatever its source, must be at least of some probative value.'"

We do not consider that the Tribunal was in error in receiving the evidence of Sergeant Brown concerning his conversation with Inspector Burke. The Tribunal, as we have said, was not bound by the rules of evidence and we do not think it can properly be said that the evidence had no probative value. We have reached the same conclusion in relation to the evidence given by Sergeant Brown concerning his conversation with the appellant in June 1982. The evidence was to some extent unsatisfactory in that the witness was unable to recall the exact words used by the appellant but that circumstance does not, of itself, demonstrate that the Tribunal was in error in receiving the evidence.

Mr. Van Kuyk's evidence of his conversation with the appellant was clearly relevant and admissible. The evidence concerning the repetition of that conversation to other police officers appears to have been relied upon by the Tribunal as relevant to Mr. Van Kuyk's credibility rather than to the truth or falsity of what was reported by Mr. Van Kuyk to those police officers.

It is abundantly clear from the Tribunal's reasons that much turned on the credibility of the witnesses. The Tribunal had the great advantage of listening to and observing their demeanour and there is more than one reference in the reasons to the Tribunal's observation and assessment of them. This suggests to us that the Tribunal regarded this factor as being of more than usual significance in arriving at its decision. We are correspondingly at a disadvantage in our assessment of the evidence.

Having concluded that the Tribunal was not in error in receiving the evidence to which objection has been taken and accepting that the Tribunal was entitled to form its own assessment as to the weight of evidence and the credibility of witnesses, we are not persuaded that there was insufficient material to support the findings which it made in relation to the matters to which the evidence of those witnesses was directed.

The Tribunal also had before it the evidence of Inspector Elkington who was at the material time the officer in charge of the Criminal Investigation Bureau in Victoria of the Australian Federal Police. It was clearly open to the Tribunal to find on that evidence that at the relevant time the Australian Federal Police was involved in an overall investigation into the Australian meat industry in relation to illegalities in the meat export trade and that that investigation included the activities of Steigers. That company was, on the material before the Tribunal, about the fifth biggest exporter of meat. Inspector Elkington's evidence was also to the effect that an investigation into a specific matter involving Steigers had been commenced in 1976, had been brought forward in 1979 and again in 1980 and that that company's affairs were still under consideration in 1981. He said that he had given specific instructions to officers under his control to examine the whole meat export industry in Victoria, including Steigers, in response to a complaint made in October 1980 or possibly earlier.

We are not convinced that the Tribunal erred in rejecting the argument that the word "matter" in regulation 15 should be given a restricted meaning or in finding on the evidence before it that at the relevant time there was a matter involving Steigers in which the Australian Federal Police was interested or concerned.

The Tribunal decided that to constitute a breach of regulation 15 of the regulations it was necessary that it be shown that "the member has actual or at least constructive knowledge of the 'matter' and the fact that the Australian Federal Police had an interest or concern in such a 'matter'". On the evidence the Tribunal found that the appellant did in fact have the requisite knowledge.

Counsel for the respondent argued that regulation 15 did not require proof that the member at the time of the soliciting or receipt of the gift or gratuity had knowledge of the "matter" in which the Australian Federal Police was interested or concerned. In the light of the Tribunal's finding that the appellant had actual knowledge of the "matter" and our satisfaction that it was entitled so to find on the material before it, we have no need to express a concluded view on counsel's submission. We should say, however, that we incline to the view that the proof of such knowledge is not an essential element of a disciplinary offence based upon regulation 15. That regulation would appear to be satisfied if there is a soliciting or an acceptance of a gift or gratuity and it is proved that the person solicited or the donor is at that time in fact concerned directly or indirectly in a matter in which the Australian Federal Police is interested or concerned.

Towards the end of the argument the Court invited the attention of counsel to what appeared to be a lack of conformity between the particulars set out in the notice alleging the disciplinary offence based on paragraph 18(1)(a) and regulation 15 of the regulations and the findings made by the Tribunal on the material placed before it. The particulars contained in the notice referred to the appellant accepting gifts of meat "from a person or persons unknown employed by, or at the premises of, Steigers Meat Supply (Australia) Pty. Ltd., Melbourne, Victoria, such person or persons being concerned indirectly with a matter in which the Australian Federal Police was interested or concerned". The Tribunal found that the gifts of meat were received from Steigers and it was the company that was concerned with the matter of interest or concern to the Australian Federal Police.

Counsel for the appellant then sought leave to amend the notice of appeal to raise an issue based upon this lack of conformity.

All the essential elements of the disciplinary offence were stated in the notice. It is abundantly clear that in the proceedings before the Tribunal the appellant was under no misunderstanding that what was alleged against him was that he had received free meat from Steigers. The matter proceeded both before the Tribunal and before this Court on that basis and upon the allegation that Steigers was concerned indirectly with a matter in which the Australian Federal Police was interested or concerned. The findings of the Tribunal also satisfy us that it addressed itself to the correct issue in terms of regulation 15, being the issue to which the evidence and argument was directed. While it may have been preferable for the particulars to have been amended no application for such amendment was made. We are satisfied that any lack of conformity between the particulars as stated in the notice and the facts upon which the decision of the Tribunal is based did not work an injustice to the appellant. Leave to amend the notice of appeal is, therefore, refused.

The formal statement of the Tribunal's decision (paragraph 1) records the Tribunal as finding the appellant guilty of a breach of discipline "alleged in the notice dated 20 September 1982". In the light of what is said above it is desirable that the decision be amended to make clear the basis upon which the finding of guilt was made.

Paragraph 1 of the Tribunal's decision dated 29 April 1983 should be set aside and the following paragraph substituted -

"Ronald Alan Harris is guilty of a disciplinary offence specified in paragraph 18(1)(a) of the Australian Federal Police (Discipline) Regulations by contravening a provision of Division 1 of those regulations, namely regulation 15, in that at Melbourne in the State of Victoria on divers dates during the period between 1 May 1980 and 31 March 1981, the said Ronald Alan Harris directly accepted gifts of meat from Steigers Meat Supply (Australia) Pty. Ltd., Melbourne, Victoria, that company being concerned indirectly with a matter in which the Australian Federal Police was interested or concerned."

Otherwise the appeal should be dismissed. The appellant is to pay the respondent's costs of the appeal.