LasclAFPDT 6 "IN THE FEDERAL POLICE ) ) No. FPDT 3 of 1986 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against MICHAEL ANTHONY KEATING Member : Mr B.R. Maguire, Q.C. Date : 23 September 1986 DECISION THE TRIBUNAL FINDS THAT: i Michael Anthony Keating, a member of the Australian Federal Police (the Respondent), is guilty of eleven charges, numbered sequentially from 22-85/86 to 32-85/86, of improper conduct otherwise than in his official capacity in that he gave to a named person a cheque that was not honoured on presentation. Ze The said Respondent is not guilty of the charge of making a false statement in an application form lodged with a credit union in support of an application for a personal loan, being the charge numbered 34-85/86. THE TRIBUNAL ORDERS THAT: Te In respect of the said eleven charges, the proceedings be remitted to the Commissioner of the Australian Federal Police for the imposition of a penalty by the Commissioner. Ds The two charges of breaches of discipline by the Respondent, being charges numbered 33-85/86 and 35-85/86, be dismissed. Ze The charge that the Respondent made a false statement, in an application form lodged with a credit union in support of an application for a personal loan, being the charge numbered 34-85/86, be dismissed. 4. That in relation to the charge numbered 34-85/86, the Commonwealth pay the Respondent's costs, which the Tribunal assesses in the sum of $1325.00. B.R. MAGUIRE, MEMB * IN THE FEDERAL POLICE, ) ) No. FPDT 3 of 1986 DISCIPLINARY TRIBUNAL ) THE COMMISSIONER OF POLICE against MICHAEL ANTHONY KEATING REASONS FOR DECISION MR B.R. MAGUIRE, Q.C. CANBERRA 23 SEPTEMBER 1986 5 The tribunal has before it for determination 14 allegations of breaches of discipline by Chief Inspector Michael Anthony Keating ("the respondent"). Two of those allegations, numbers 33-985/86 and 35-85/86, are not pursued by counsel for the commissioner and, accordingly, they are dismissed and I say no more about them. Eleven of the charges, numbered sequentially from 22-85/86 to 32-85/86, are allegations of a similar nature in each case. Shortly stated, each charge alleges that the respondent was guilty of improper conduct otherwise than in his official capacity in that he gave to a named person a cheque that was not honoured on presentation. I see no point in setting out the particulars of the payees and amounts involved in relation to those cheques. The first alleged offence is in fact number 23-85/86 and is alleged to have occurred on 12 August 1985. The last of the 11 offences appears to be number 31-85/86 and is alleged to have occurred on 10 November 1985. It is thus plain that all these offences are alleged to have occurred within a period of about three months towards the end of last year. In respect of each of these 11 matters the respondent yesterday at the outset of proceedings admitted his guilt and in due course it will be my responsibility to remit the proceedings to the commissioner for the imposition of a penalty in respect of each of those breaches of discipline. The only remaining matter is number 34-85/86. That involves, shortly stated, an allegation of improper conduct otherwise than in the respondent's capacity in that he knowingly made a false statement in an application form (exhibit G) lodged with a credit union in support of an application for a_ personal loan, which application was made to the credit union on 13 November 1985, that is, towards the end of the period embraced by the 11 cheque matters already referred to. This matter was defended and at the conclusion of the submission put by counsel for the commissioner I indicated that I did not want to hear any submissions on behalf of the respondent. I now state my reasons. Two witnesses have given evidence directly in relation to this matter. I am mindful, of course, that I must take into account on this matter the character evidence to which I will refer in a moment. The two witnesses are the official of the Canberra United Credit Union, Mr Hawkins, who was called on behalf of the commissioner and the respondent himself. I have to say that I was impressed that each of them was doing his best to give an accurate, truthful an as complete as possible an account of the transaction that occurred in Mr Hawkins' office on 13 November 1985. However, it has to be said of each of them that he was to a large extent reconstructing his evidence. ) That is not said critically of either of them. On the one hand, Mr Hawkins was accustomed to processing transactions of this kind at the rate of about a dozen a day and there was not a great deal to distinguish this transaction in his' recollection, nearly a year after the event, from any other transaction. Although, I do note that he does have an independent recollection of the fact that he was then dealing with a senior police officer and that he had some discussions about people whom they both knew. On the other hand, the respondent, I think consistently with the state of affairs that had obtained in his life over the preceding few months, was plainly not doing the best by himself on the occasion of that transaction. The very fact of the 11 cheque matters; the matters that appear from the records of interview which are before me (exhibits B, C and D) each of which was taken between the respondent and senior police in the latter half of November last year; and the medical evidence, particularly that of Dr Tennant; all suggest that at the time I am concerned with, the respondent's life was ina _ state of disarray. It is clear that his marriage was under extreme pressure. Not only was it under extreme pressure but I am persuaded that he was making more than average efforts to retrieve and maintain the marriage. And that that put him in particular under even more than the level of pressure that one associates with the fracture of a marriage. It is also clear, particularly from exhibit C, that there was a real conflict in his life between the marriage and his career as a police officer. And it is very clear on the evidence that he had and has an unusual degree of commitment to his role as a member of the Australian Federal Police. There had been some discussions between Mrs Keating and the respondent about the possibility of his abandoning his career as a_ police officer in favour of the marriage. That was apparently seriously considered by both of them and ultimately I think wisely, rejected. Because it was seen by both of them that if the career were abandoned and the marriage ultimately did not recover, then that would just add a further cause of discontent between them. It is very plain to me on the evidence that those two factors, the marriage and the pressure on his career and the third factor of tne inter-reaction between the two of them were weighing very heavily on the respondent during the latter months of 1985. It is also clear that those factors were a major cause of the respondent's resort to alcohol in quantities that were doing him more harm;than good. And indeed that resulted in a further problem as appears very plainly from Dr Tennant's evidence and from the other medical evidence that is before me. I cannot be sure what happened precisely at the interview between Mr Hawkins and the respondent at Mr Hawkins' office on 13 November 1985. It is plain that the loan application document (now exhibit G) was signed by the respondent and it is equally plain that some of the answers recorded in writing by Mr Hawkins on that document and before the respondent signed it are not accurately representative of the facts. However, a number ort possibilities arise which are contra-indicative of guilt. Firstly, Mr Hawkins was very tentative in his assertions that he had any real independent recollection of the conversation that day. I do not think even he would confidently assert that what he wrote down reflected accurately and entirely everything that the respondent told him in answer to his, Mr Hawkins, questions. In addition to that I am quite persuaded that the respondent's state of mind and general state of personal turmoil at the time was such that he was not doing himself justice when he answered Mr Hawkins' questions, that he did not sufficiently apply his mind to the affairs about which he was being questioned. I am quite unable to say that the respondent deliberatley sought to mislead Mr Hawkins or the Canberra United Credit Union in the answers that he gave orally to Mr Hawkins. That of course would not be the end of the matter for the fact is and it is not disputed that after the document had been completed, the respondent signed it. I accept his evidence which is not really contradicted by the evidence of Mr Hawkins that he signed it without reading it. I reject the submission that that is unlikely. I think that both men regarded what was happening as something of a formality and I would point out that the size of this transaction in today's money values and particularly when one looks at the substantial equity in the Keating family home at that time, as disclosed on exhibit G itself, suggests that this really was to the respondent and to Mr Hawkins both, a relatively minor transaction. And it did not attract the undivided attention that a more substantial transaction might have induced. I am quite unable to say that the respondent knowingly made a false statement in that document and that matter is also dismissed. That leaves the 11 cheque matters in which, as I have already indicated, the respondent has acknowledged his guilt. The scheme of the Act that governs the operation of this tribunal and otherwise governs the discipline of members of the Australian Federal Police leaves it to me only to find facts and where there is a finding of a guilt, requires me to remit the proceedings to the Commissioner for the imposition of a penalty by the Commissioner. ' A It follows from that time that I am quite unable to trespass on the commissioner's domain of penalty. However, that is not to say that I cannot assist the commissioner and indeed I think in an appropriate case the tribunal is bound to assist the commissioner by finding facts in areas of fact in which it could reasonably be expected the commissioner would be interested when he comes to exercise his discretion about penalty. This, I believe, is such a case and I now proceed in an endeavour to assist the commissioner to make some findings in accordance with section 67(3) paragraph (b) about the facts in this matter. The respondent's case was assisted by the evidence of four of his superiors; a deputy commissioner, two assistant commissioners and one chief superintendent. To find in a hearing such as this evidence forthcoming from one such superior officer would be at least unusual. To find evidence coming forth to assist the respondent from four of them is not' short of remarkable and that mere statistic, without looking at the substance of what each gentleman had to say, is strongly suggestive that the respondent has been until the commencement of this unhappy chapter last year a police officer of outstanding quality. Deputy Commissioner Farmer had been the respondent's superior when they w¢re both engaged on the training side of the force and he said that her was very, very pleased with the respondent's performance during that period. He regarded him as most professional. Assistant Commissioner Watt described the respondent as most conscientious and capable. He said that he put the interests of the force ahead of himself. That he was clear, capable and lucid. That he worked harder than he had to and he qualtified his dedication at 100 per cent. He rounded off his praise by saying "I held him in very high regard". He added that the respondent drove himself hard, that he was a truthful man and an honest policeman. Mr Broomby described a long association with the respondent and he spoke highly of his dedication, his degree of expertise and he expressed quite clearly the view that the events of last year had been totally foreign to the man as he had known him. Assistant Commissioner Winchester had been quite shocked to learn that the respondent had found himself in this' trouble. It was totally out of character for Michael Keating. He spoke in a number of ways of the respondent's virtues and strengths as a police officer. I would not expect ever to hear again a body of character evidence as powerful as that. i Having heard the medical evidence I find that at the time of the commission of these 11 offences the respondent was under a level of personal pressure that was quite severe and his response to it, including as it did a resort to the over-use of alcohol, had led him off a heretofore path of devotion, dedication and achievement as an efficient and respected police officer. Although Dr Tennant says that the prognosis is uncertain she, I find, painted a picture whereby the respondent, if he puts his own mind to it, is well able to be rehibilitated and to become again a useful member and respected member of the ) police force. I further find that in relation to the cheque offences, no person has suffered any financial loss. I think that sufficiently sets out the facts that overlay the commission of these unfortunate offences and I shall report accordingly in writing to the commissioner. The only order as to costs that I make is in relation to 34-85/86, and I order the Commonwealth to pay the respondent's costs which I assess in the sum of $1325. I CERTIFY THAT THIS AND THE PRECEDING EIGHT (8) PAGES ARE A TRUE COPY OF THE REASONS FOR DECISION OF MR B.R. MAGUIRE, Q.C., MEMBER, GIVEN ON THE 23RD DAY OF SEPTEMBER 1986