e397 IN THE FEDERAL POLICE FPDT 3 of 1997 DISCIPLINARY TRIBUNAL TRIBUNAL DATE PLACE COMMISSIONER OF POLICE Vv. FEDERAL AGENT D. MACCAUL SPECIAL MAGISTRATE J.J.DAINER AM, RFD, MEMBER. 2nd OCTOBER 1997. CANBERRA, ACT. FINDINGS. On Charge AFP:WEDMOO1, alleging that Federal Agent D. Maccault committed the disciplinary offence of acting in a manner unbecoming an AFP appointee, contrary to Regulation 18(1)(e) of the Australian Federal Police (Discipline) Regulations, the Tribunal finds him GUILTY, and, under Section 67(3){b) af the Complaints (Australian Federal Police) Act 1981, remits the proceedings to the Commissioner for the imposition of a penalty. On Charge AFP: SMWDMOO2, alleging that Federal Agent D. Maccaul committed the disciplinary offence of improper conduct, contrary to Regulation 18(1)(d) of the Australian Federal Police (Discipline) Regulations, the Tribunal finds him NOT GUILTY. On Charge AFP: SMWDMOO3, alleging that Federal Agent D. Maccaul committed the disciplinary offence of acting in a manner that brings, or is likely to bring, discredit to the AFP, contrary to Regulation 18(t)(g) of the Australian Federal Police (Discipline) Regul- ations, the Tribunal finds him NOT GUILTY. Meni foveal J.J.DAINER, MEMBER. IN THE FEDERAL POLICE FPDT 3 of 1997 DISCIPLINARY TRIBUNAL COMMISSIONER OF POLICE Vv. FEDERAL AGENT 0D. MACCAUL TRIBUNAL : SPECIAL MAGISTRATE J3.J.DAINER AM, RFD, MEMBER DATE : 2nd OCTOBER 1997. PLACE : CANBERRA, A.C.T. REASONS FOR DECISION Federal Agent David Maccaul (the defendant) was charged with three offences. All three were preferred under Regulation 18 of the Australian Federal Police (Discipline) Regulations. The basis for the charges consisted of statements in certain parts of a letter which the defendant sent to the Commissioner of the Australian Federal Police (AFP) under date of Y1th June 1996. It was broadly alleged in each of the charges that the defendant had sought "to inappropriately influence" the Commissioner to reconsider an earlier decision by him not to apply the provisions of Section 26E of the Australian Federal Police Act and terminate the defendant's appointment. The first charge alleged that he acted in a= manner unbecoming an AFP appointee; the second that he was guilty of improper conduct; and the third, that he acted in a 2. manner that brought, or was likely to bring, discredit to the AFP. Section 26E& of the Australian Federal Police Act, which is ral to the issues in this matter, provides that a member af tha AFP may have his or hear Fixed tarm of appointment teaeminated early by the Commissioner, or his delegates. he Section may be appliad where a member is subject te v a redundancy action, or for other causes, such as where it is considered the member is unsuitable to continue serving in the AFP, e.g., where the member has lost the confidence of tha Commissioner or his delegate. In the present case, the broad facts were that the defendant had aoglied for, and had been refused, termination on the basis of redundancy. He had then informed the Commissioner by letter that his wife had purchased a brothel, and that it may be a source of embarrassment to himseif and the AFP. if the media bacame aware of the situaticn. The Commissioner advised the defendant that, as the business was a legitimate one, ne did not consider the situation such as to warrant the application of Section 26E in his case. After this, the defendant wrote another letter, dated W1th June 1996, (the subject of the charges), in which he said that he had spent a considerable amount of time at the brothel during the preceding five months, and had "become Familiar to a wide range of clientele, these include people from Melbourne's criminal element as well as it's (sic) judiciary". He went on to say that this could compromise AFP operations and cause embarrassment to it, if he had "to give evidence before a Judge, Magistrate or in the presence of a criminal familiar with my involvement with the brothel. Resulting in a media scandal that would have an adverse impact on the image of the AFP". The defendant said that media interest would exist only because of his occupation. He stated that "resignation is an obvious way to prevent any future problem", but added that he was "in no financial position to resign". uw He conciuded by saying "Taking into consideration the extra information I have provided you with I believe that it is in the best interests of the AFP and myself for you to reconsider my previous request for a (S)ection 26E package". Termination under Section 26E, rather than resignation, in the defendant's case, would have resulted in a substantial financial advantage to him. In a document tendered at Exhibit 7, figures were detailed showing that, as at 26th April 1996, the defendant would have been entitled to a nett payout of $53,904.42 if his appointment had been terminated under Section 26E. If he resigned on that date, his nett payout would have been $16,277.60; a difference of $37,626.82. I turn now to a narrative of the evidence in the matter. The defendant has been a member of the AFP since 1981. At the time of the relevant occurrences, he was employed in the firearms section of Headquarters, Southern Region, AFP, Melbourne. Sometime during 1995, although precisely when was not clear on the evidence, a round of early retirement and redundancy packages was announced by the AFP Commissioner. The packages were intended for senior officers, a category to which the defendant did not belong. Nevertheless, he submitted an application for a redundancy package. The application was refused. On 14th December 1995, the defendant had a conversation with Mr Lester Cross, the-then Manager of Regional Co-Ordination, and responsible for staff matters in the Southern Region. Mr Cross gave evidence that the defendant told him that his wife was purchasing a brothel), and that he wanted to bring that fact to official attention, as "it might cause immediate concern". Mr Cross said he told the defendant to report the matter in writing, so that it would be on record, and so that the General Manager, who was the most senior person in the hierarchy of the Region, would be aware of the situation. The following day, the defendant handed Mr Cross a tetter, which became Exhibit 2. In it, the defendant expressed concern that investigations which ne said would be carried out by the brothel licensing authorities would disclose his occupation, and that it would only be a matter of time before the media learned of the situation. He said that this "would cause extreme embarrassment to both the AFP and myself". He went on to say : "The reason I have waited until now to notify you of this matter is that I had applied for a redundancy package. As that option is now gone I am submitting this report to forewarn you of any future media attention regarding this matter". It should be stated at this point that brothels were, at all relevant times,( subject to certain lticensing requirements), Yegal in the State of Victoria. It also should be noted, from the contents of Exhibit 3, the "Sale of Business Agreement" relating to the purchase of the brothel by Mrs Maccaul and others, that the ourchasers entered into possession of the premises on 20th May 1995, although settlement was not effected unti? TOth May 1996. Returning to the narrative, Mr Cross said he had discussed the matter with the defendant, and gave his letter to the then Acting General Manager, Mr Mills, who said ha would forward tne defendant's minute to the Employment Standards section. The question of whether Section 26& should be invoked was raised, and subsequently the matter was referred to the Australian Government Solicitor for advice. A fax containing the advice was later received, addressed to the General Manager. The contents of the document were the subject of a claim of privilege by counsel for the Commissioner, Mr M, Chilcott, which was upheld. Following this, Mr Cross said he had spoken to Ms Wendy Morrison, of the Employment Standards office, on, he thought, the morning of 25th January 1996. It was proposed that he discuss with the defendant the possible application of Section 26£, and ascertain whether he would object to such a course. It was agreed that, in the event that he did not object, the matter would be processed by Employment Standards under the Section. Mr P.Phillips, who by that time was the Acting Genera} Manager of the Region, also discussed the matter with Ms Morrison, but he said in his evidence that he believed the conversation took place on 22nd January. Later on the morning of 25th January 1996, according to Mr Cross, but on 22nd January, according to Mr Phillips, the defendant was interviewed by Mr Phillips, in Me Cross's presence. Mr Cross conceded in cross-examination by Mr P. Burke, counsel for the defendant, that, on escorting the defendant to Mr Philtips'! office, he said something like "They are considering offering you a redundancy". He denied that he had said "They are going to offer your a redundancy. I'm just wording you up". He said he had been toid by Ms Morrison that, under no circumstances, was the defendant to be offered action under Section 266, or was he to be guaranteed that such action would be taken. Me Phillips said he made a diary entry regarding the matter, and read to the Tribunal the relevant entry "Monday, 22nd, meeting with Maccaul re purchase of establishment and 26E implications; info from Wendy M(orrison) is that scenario is likely to result in 26E; to assess". Mr Phillips said the ensuing conversation with the defendant "related around the possibility of the circumstances of (the brothel) purchase being capable of facilitating 26E application". Mr Phillips said that neither he nor Mr Cross asked the defendant whether he would agree to go under Section 26E. He said that the defendant made a request that this course be adopted, adding that "...it was clear it was (at) (the defendant's) instigation that the 26E would solve his problem, and could we please look at that". Mr Phillips said that he telephoned Ms Morrison and said "This is the desired outcome that (the defendant) wishes, what's (sic) the chances ?", to which she replied "Yes, it sounds like a likely scenario that would accommodate a 26E". Me Phillips agreed, in cross-examination, that he told the dafendant that consideration was being given to Section 262 action. He agreed that he would expect the defendant to have believed, after their conversation, that it was "Vikely" that he was going to be the subject of Section 26E action. Me Cross's recollection of this conversation was that Mr Phillips had said "that that matter (the purchase of the brothel) had obviously been before Employment Standards in Canberra, and that one of their options was to consider an action (under) 26E". He said the defendant was asked "what he thought about that" adding that he (the defendant) "was quite excited (about) the fact that they were going to offer a 26E". Mr Cross went on to say the matter of entitlements was discussed, but he could not recall the details. He said that the defendant "was keen to jieave as quickly as possible, and he actually requested a departure date of Sth February". Mr Cross said he then spoke to Ms Morrison to tell her that the defendant "would not object if a 26& was offered". He said the defendant was not told that he would be leaving on 9th February, although he conceded the defendant "may have formed that opinion", The defendant's preference for a departure date of 9th February was communicated to Ms Morrison, who said that the options would be considered, but that, because of pre-existing work-loads, the suggested deadline for Section 26& action would be difficult to implement "if the proposal was agreed to". A submission had to be made to the detegate for him to make a decision bafore any Further action could be taken, Mr Cross said that he had no further formal meetings with the defendant, but saw him on about 6th February, and told him the "paperwork" coutd not be finalised in time. He said that the defendant had told him he was to start training for a security guard's joo. Mr Cross could not recall the date when the defendant said this would occur. He said he told him he was premature in applying when the matter had not been resolved, and that there were numerous other cases that were being considered. Me Cross agreed, in cross-examination, that he had written, in a minute which became Exhibit 6, that Mr Phillips "spoke with Maccaul and informed him the AFP where (sic) considering the possibility of invoking 26£ action against him for his wife's purchase. Maccaul was in full agreement with the AFP's proposal and asked how soon he could leave the AFP", with 9th February then being mentioned. Mr Cross said that, in mid-February 1996, he was contacted "by Ms Morrison , who requested additional information verifying the defendant's wife's purchase of the brothel At his request, the defendant provided photocopies of the agreement to purchase the brothel, which later became Exhibit 3. Ms Morrison gave evidence that she had had a number of telephone conversations with the defendant early in 1996. She recalled one conversation, on 28th March 1996, when, she said, he asked her when the Section 26E£. action would be finalisad. She replied that a delegate "had to be convinced that he was unsuitable to remain", whereupon the defendant said that he had had a job to go to on 12th Fabruarcy and he had had to delay that. She then said "Well, 'you de) have options that you can exercise', to which he replied "I'm only 'teaving the AFP if E gat a redundancy. The AFP has said they don't want me, so I expect to be oaid". Ms Morrison said during the conversation, which was lengthy, she told the defendant that it was ultimately a matter for the delegate to decide, that the process involved his being given an opportunity to show cause why termination should not be effected under Section 26E, and that then her office woutd submit all relevant material to the delegate for his Final determination. Ms Morrison said she had a further conversation with the defendant between early April and mid-June, during which he said there were only two ways he would be leaving the AFP, She said the words he used were either "through old age or with a bucket of money", or "dead or with a bucket of money". She also said that during that conversation, the defendant made some comment about the fact that he was a serving member of the AFP, and that, because his wife was the owner of a brothel "it would not look good if this information got out into the media". She said she reminded him that he was covered by the secrecy provisions of the AFP Act, to which he replied something Tike "I have no intention of going to the media, but I can't control what my wife does", adding "something about having a relative who worked with The Australian newspaper". 10. As to the timing of the interview between the defendant and Messrs Cross and Phillips, Ms Morrison satd she had a file note that she had conversations with Mr Cross on 25th January and 26th Febcuary and with Mr Phillips on 23th January 1996. She had no note of a conversation with the Jatter on 22nd January. Ia cross-examination, Ms Morrison said she had not given the defendant any indication as to how tong the process woutd take; each case was individual. She agreed that the defendant would "not necessarily be any the wiser as to whether a decision could be made within a matter of days or whether it could take several more months". Ms Morrison said that, on 2nd April 1996, she forwarded a draft notice under Section 26E to the Director, Legal, of the AFP. She agreed that the notice was based on 'tan alleged failure by (the defendant} to inform the AFP of his alleged involvement in the running of the brothel and the time spent at the premises". She added that, while she believed this was relevant, the delegate would decide whether that allegation remained in the final notice. She agreed that it was normal to attach a statement setting out the entitlements of a member to the submission, but said that this did not form part of the material for the delegate's consideration, but was merely for his information. On 28th May 1996, Commissioner Palmer wrote to the defendant, and, referring to the latter's minute of T4th December 1995, said he was "not in a position to draw any adverse inferences from your wife's legitimate business. Specifically I cannot make the assumption that you have any 11. involvement, moc that her business interests will adversely impact on your suitability ta continue to exercise the powers, perform the duties or to carry cut the functions of a member of the Austratian Federal Police". That document became Exhibit 8. Mr J. Penrose, the Director, Operations Support, Southern Region, AFP, gave evidence that, at about 12.159m on 2rd June 1996, he had handed to the defandant the Commissionar's letter of 28th May in a sealed envelope. Mr Penrose said that he knew what was tn the letter, and discussed its contents with the defendant. He said they had a general conversation about the defendant's future career in the AFP, and understood that "he was quite happy to continue with developing his career within the AFP, now that a decision had been made, and would abide by the discussions that we had in relation to taking up the offer of the investigator's course, and developing his career". At about 2.05 pm the same day, Mr Penrose said that he and the defendant had a further conversation. The defendant said he had discussed the matter with his wife, and "felt that if he didn't get a redundancy that there could be adverse publicity in relation to the fact that his wife was the owner of a brothel, and that there could be intense media interest in the fact that he was a member of the AFP", Mr Penrose said he told him that the Commissioner had made a decision about the redundancy, and that, "if he really wanted to leave the AFP, the only option probably open to him that he may have to consider, was a resignation". He said the defendant's "response was that he really needed the redundancy for the financial package that (is) provided, 12. and that he felt he should be given a redundancy", adding that he wished to remain a candidate for a redundancy if one should become available in the Future. He said "he had been promised cedundancy by Federal Agent Phillips". Mr Penrose agreed, in cross-examination, that the defendant had said that he could not afford to resign, and needed the redundancy package. The only other evidence was that of Mr S.G.Hepwortnh, Manager, Personnel, Southern Region, AFP. He said he had received a request from the Employment Standards office in Canberra to prepare pay-out figures for the defendant, based on a departure date of 9th February 1996, under Section 26E. This information had been supplied, and a copy given to the defendant, at the latter's request. Mr Hepworth said he was asked to prepare another pay-out summary, sometime in April 1996. He agreed that the figures shown in Exhibit 7 were those compiled by him at that time. When asked in cross-examination about payment of clothing allowance to the defendant, Mr Hepworth said the allowance was paid twice a year, in advance, one payment being due on 3rd April 1996, the first pay day in April. He agreed that the defendant's pay slip for that pay day showed that the clothing allowance had not been paid. He said that he had had a discussion with the defendant about this, and they had reached an agreement that payment would be withheld. This was because the defendant would have to repay the Commonwealth if he left the AFP "because of the possible 26E action". This discussion may have ocurred, 13. he believed, before 3rd April 1996, but he could not recall exactly when. At the close of evidence called on behalf of the Commissioner, Mr Burke submitted that there was no case to answer in relation to gach of the three charges. During the course of his submission, Mr Burke referred to two requests for particulars made by his instructing soliciters of the Commissioner, and the responses thereto. Because of a submission made by Mr Chilcott, in reply, regarding the status of the answers to particulars, it should be noted from the documents contained in the Tribunal file, and hence before the Tribunal, that particulars were initially requested by the defendant's solicitors on 19th May 1997. There was no response to that request. On 15th July 1997, at the first of two Directions Hearings, an application was made by the solicitor for the defendant, Ms J. Heeps, that that request be answered. An order was accordingly made that the request was to be answered by the time of the next Directions Hearing, on 22nd July 1997. The Commissioner responded under date of 17th July 1997. On 18th July, a further request was made for "clarification" of certain details of the answer, This request was answered on 21st July. This area of the case became relevant in connection with Mr Burke's submission regarding the charge of "Acting in a manner that brings, or is likely to bring, discredit to the AFP, etc." 14. The request of 18th July sought advice as to whether the actions of the defendant brought discredit upon the AFP, or merely were likely to do so; Further, the question was .asked as to why it was likely that informing the Commissioner of the contents of the Jetter of 1th June would become "oublicly or widely known", as alleged on 17th July. The Commissioner's response was that it was likely that the defendant's act would bring discredit to the reputation of the AFP were it to become widely or publicly known, The second part of the request was not answered, on the basis that it was a matter of evidence. The Commissioner's. letter went on to say, however, at page 2, paragraph 1, that a supplementary statement was being prepared by Federal Agent Penrose in which it would be alleged : (1) that the defendant's act was widely known amongst AFP staff at Southern Region; (2) that knowledge of the defendant's act had affected morale amongst the staff at Southern Region, and (3) how knowledge of the defendant's act had affected morale amongst the staff at Southern Region. That evidence was not led from Mr Penrose. When asked where the evidence was that the defendant's actions were likely to become widely or publicly known, Mr Chitcott submitted that the statement relating to Mr Penrose in the Commissioner's letter was not before the Tribunal in an evidential sense. It was made following a_ votuntary response to a request for particulars. He further agreed that there was no evidence before the Tribunal as to what actually did transpire after the defendant's Jletter allegedly became known to others in 15. Southern Region, "despite what is written in the letter" answering the request for particulars. Mr Chilcott said that the evidence was not led partly because of observations made by the President of the Tribunal, Mr Justice Foster, in the case of Cross. In that case, the President indicated that he did not want to hear such evidence, Notwithstanding that, Mr Chilcott said that the President did receive the evidence, Saying that he would give it what weight be believed it to be worth. I took the view that, in the absence of any evidence to support the allegation in this particular charge, apart from the untested allegations in the particulars supplied, there was no case for the defendant to answer. I thereupon ruled accordingly. As to the other two charges, which, it was ultimately agreed by counsel, were in the alternative, I held there was a case to answer. Mr Burke thereupon informed the Tribunal that he would not be calling the defendant to give evidence, nor would he be calling any other evidence. He did, however, wish to make further submissions as to whether one or other of the charges had been established on the balance of probabilities. Mr Chilcott addressed first. He submitted that the interpretation which should be placed on the word "improper" was as set out in Bercove v Hermes 74 FLR 315, where the equivalent Regulation under the Public Service Act was said to be "directed at conduct which may be regarded as lacking in propriety or is unbecoming or unseemly in the circumstances". 16. Mr Chilcott said he did not dispute that the writing of the letter of V1th June 1996 to the Commissioner was appropriate, and that it would be expected by senior officers in the AFP that a minute containing information For the attention of management would be unexceptional. What was inappropriate, he said, was the inclusion in the letter of material which, in his submission, must be construed as an attempt to influence the Commissioner to change his view about the application of Section 26E. Mr Chilcott set out the chronology of the events leading up to 1th June 1996. First, there was the round of redundancies, in respect of which the defendant, although not ceally eligible, made an application, which was refused. His wife entered into occupation of, and commenced being involved in the running of, the brothel, on 20th May 1995, some seven months before the defendant wrote the minute of T4th December 1995 disclosing the fact that she was purchasing a brothel, but without revealing those details. Mr Chilcott said that, following the minute, the defendant had the discussion with Messrs Cross and Phillips, his superiors, as a result of which he alleged he had been promised a Section 26E determination. This was denied by Cross and Phillips, although it was conceded that the defendant may have been left with the impression that he would be receiving a Section 26E determination. The subsequent conversations with Ms Morrison were indicative of the defendant's determination to pursue the Section 26— determination. His comment to her that he would leave the AFP only through old age, or death, or with a bucket of money, was unchallenged by him in evidence. 17. The evidence was clear, Mr Chilcott submitted, that the defendant was concerned about the delay in finalising what he believed to be a Section 26E determination. The letter from the Commissioner dated 28th May 1996, in which the Commissioner advised that he would be reguired to continue to serve, was given to him by Mr Penrose on 3rd June 1996. Initially, Mr Penrose said the defendant accepted the Commissioner's decision and was happy to continue serving. Later that day, however, after speaking to nis wife, ne said he wanted to pursue the Section 26E determination, saying that he could not afford to resign. The letter of T1th June 1996 to the Commissioner followed. Mr Chilcott submitted that, although the defendant's wife had been operating the brothel since May 1995, some i3 months prior to 11th June 1996, the defendant in his letter of that date did not allude to that fact, but said he had spent a considerable amount of time in the brothel for the previous five months, i.e., from January 1996, the time of his conversation with Messrs Phillips and Cross. Mr Chilcott said that the defendant's reference to his having some contact with, and knowledge of "criminal elements" and "members of the judiciary", during that time, and that there could be a "media scandal" if the facts became known, were part of a deliberate attempt by him to influence the Commissioner to let him leave the AFP under Section 26€ so that that situation could be avoided. His request to the Commissioner for him to re-consider his previous decision regarding the application of the Section made that clear. . 18. In Mr Chilcott's submission, the defendant was driven by the financial incentive of a Section 26E separation to "write this letter, to craft it in such a way as...a means of Vast resort to inappropriately influence the Commmissioner" to change his earlier decision, and had thereby acted in a manner unbecoming an AFP appointee. It was clear, in Mr Chilcott's submission, that no promise, jet alone a guarantee, about the application of Section 26E, had been given to the defendant by Messrs Cross and Phillips, or Ms Morrison, even though the defendant may have believed otherwise. In any event, it was not up to them to make any promise or guarantee : the decision was solely that of the Commissioner or his delegate. Finally, Mr Chilcott submitted that the timing of the Jetter of 1ith June 1996 was significant. 'Although it purported to be intended to supply "further information", none had been requested, and the information conveyed related to events going back over a period of five months. The fact that it followed almost immediately after the refusal of the Commissioner to apply Section 26E reflected the defendant's clear intention to attempt to change the Commissioner's mind by inappropriate means. As to the non-payment of the defendant's clothing allowance in April 1996, it was clear, from Mr Hepworth's evidence, that nothing turned on that. Mr Hepworth's only concern was that if the allowance, which was paid in advance, was paid at that time, and the defendant did obtain a Section 26E determination, the money would have to be repaid. This was by agreement with the defendant, and did not reflect any 19. intention on the part of the Commissioner or his delegate to make such a determination. Me Chileoth conceded that the two charges before the Tribunal were in the alternative, agreeing that in the cases of O'Connell and Sloane it been accepted that acting improperty can encompass acting in a manner unbecoming an AFP appointee, and, it saems, vice versa. Mr Burke submitted that tne charges had not been made out. In his submission, the defendant had done nothing wrong in informing the Commissioner of the facts set out in his letter of llth June 1996. The key words in the charges were "inappropriately influence", he said. Mr Chilcott conceded that it was not inappropriate for the defendant to inform the Commissioner of the facts set out in the letter. If the recipient of information could only be influenced, in the context of this case, by informing him of certain facts, it could not be said that that was inappropriate. Me Burke submitted that it was not only not inappropriate for the defendant to inform the Commissioner of the facts in his letter, but it was his duty to do so. He had not told the Commissioner something which he should not have told him. The defendant had not been charged with spending time in a brothel and getting acquainted with a wide range of clientele, or being involved in the activities of the brothel. Neither had he been charged with lying to, of misleading, the Commissioner. As to the unsuccessful application for redundancy made in 1995, Mr Burke said that the defendant had applied for that 20. in the normal way, even though perhaps he was not eligible. He had tried to see if he could satisfy the requirements for redundancy without mantioning the brothel. This supported the contention that he was not intending to use his wife's involvement with the orothel, as was later alleged, in an attempt to influence management to accept his application for redundancy. As Mr Burke put it, "Tt is not as if he had tried to play this as a card (at the) first opportunity.. Finalisation of the purchase of the brothel was not effected until May 1996. Because of the delays involved since his wife had gone into occupation in May 1995, Mr Burke said that, in December 1995, the defendant had decided to bring the matter of the brothel to the attention of his superior, Mr Cross, to Tet him know what was happening. He complied with Mr Cross's request to put the matter in writing, and did so on 14th December 1995. Discussions then ensued between Messrs Cross and Phillips, and Ms Morrison, either on 22nd or 25th January 1996. Ms Morrison was told that the defendant would not object to termination under Section 26E, with 9th February 1996 being his desired date, so calculations were put in train as to his pay out figure on that date. This resulted in Mr Phillips telling the defendant that it was likely that a Section 26E redundancy would be offered to him, although he was told by Mr Cross shortly before 9th February that he would not be going on that date, because the paperwork was not complete. In Mr Burke's submission, because of that information being conveyed to him, it would not be surprising if the defendant 21. started to re-arrange his affairs aceordingly. His intended security agent's course nad to be postponed again and again while awaiting what for him was the expected determination under Section 26F. The discussion with Mr Hepworth regarding non-payment of the clothing allowance in April 1996, because of an expected S26E determination, also. must nave confirmed in the defendant''s mind his belief that tne Tatter would occur. Mc Burke said it was accordingly understandable that, in planning for the future, the defendant would not regard it as a pressing matter to bring to the attention of the Commissioner the fact that he was spending same time at the brothel. It was not until 3rd June, when the defendant was given the Commissioner's tetter of 28th May, that he knew that Section 26E was not going to be applied to his case. Mr Penrose at that time discussed the defendant's future in the AFP, including placing him on an investigator's course with a view to his becoming an investigator. Mr Burke submitted that the defendant was then a firearms instructor, with no real contact with the oublic, and, whilst his contact with the brothel was "unfortunate, or could have a possible effect on the AFP", his becoming an investigator, dealing with the public and going to Court regularly, would "only exacerbate the position ". In Mr Burke's submission, the contents of the Commissioner's letter of 28th May really amounted to the Commissioner's saying "I do not have enough information which would justi fy me taking 26E action". It would be understandable that the defendant, in those circumstances, would say that, if he 22. would be going to Court and would be involved with the public, the Commissioner should be made aware of his involvement in the brothel. As Mr Burke put it, his client could reason that "the fact is that I've spent a lot more time at the brothel since then, because I thought from day to day, certainty from 9 February, that I was going to be going; that is a relevant matter to inform the Commissioner because it may very well be that if the Commissioner knows that he will say: well, I am satisfied now. It would be inappropriate for you remain a member of the AFP". Mr Burke submitted that, if the defendant had failed to bring the relevant matters to the Commissioner's attention, he would be liable to disciplinary action; having done so has resulted in him being the subject of disciplinary action. Finally, in Mr Burke's submission, the key issue in the case was whether it was appropriate or inappropriate for the defendant to inform the Commissioner of the matters contained in the letter of 11th June 1996. Before proceeding to my findings on material questions of fact, as I am required to do under Section 76(5) of the Complaints (Australian Federal Potice) Act 1981, I should refer to the fact that, prior to the commencement of these proceedings, an application was made by Mr Chilcott that the Tribunal be closed to the public, including his submission in support of the application. There was no opposition to the application by Mr Burke, and, after considering the submission, I granted it because of the unusual circumstances surrounding the charges. 23. A further application was made by Mr Chilcott that publication of the proceedings before the Tribunal, including the nature of the charges, be prohibited. That application was also not opposed, and it was granted on an interim basis, pending conclusion of the matter. The question of publication of my findings was deferred, but, ia view of the nature of the case, I will make an order under Section 74 (2) (b) Citi) that publication of my findings, and the reasons therefor, be prohibited. I also confirm the interim order regarding publication of the proceedings. The two charges before the Tribunal are, as conceded by counsel, virtually identical, and, although no point was taken by Mr Burke regarding their being duplicitous, an argument could be mounted that they are. It would appear to me, in the absence of any expressions of view to the contrary by counsel, that the most practical way in which I should proceed is to regard the charge under Reaulation 18(i)(e), of acting in a manner unbecoming an AFP appointee as being the principal charge. As stated by the then-Deputy President of the Tribunal, Mr Justice Jenkinson, in the matter of Sloane, the constitutent elements of this charge are 1. One or more physical acts of the member, 2. Each of which is a conscious and voluntary act, 3. Which the Tribunal judges to be acting in a manner unbecoming a member of the AFP. 24, The only area of dispute, as agreed by counsel, is in relation to whether it was appropriate for the defendant to write to the Commissioner in the manner in which he did on T1th June 1996. In Mr Chilcott's submission, the writing of the letter informing the Commissioner of the matters contained therein was not inappropriate. What was inappropriate, in his submission, was the use to which the defendant intended part of the material to be put: i.e., to influence the Commissioner to reconsider his decision not to apply Section 26E to the defendant's case. As stated above, Mr Burke submitted that nothing the defendant did was inappropriate. All he did, he submitted, was to supply additional information about the brothel because his new career as an investigator would bring him into contact with the public and require him to go to Court. The Commissioner should therefore be aware of the time he had spent at the brothel and the persons with whom he had come into contact there. This, Mr Burke submitted, in the defendant's eyes, could cause the Commissioner to conclude that he was satisfied that the defendant should not remain in the AFP. The difficulty with this proposition, which I quoted at length earlier, is that there is simply no evidence to support it. The defendant chose, as is his right, not to give or call evidence, so that the submissions made on his behalf in this regard could only be described as conjecture. What is clear, from the evidence, is that 1. The defendant did not bring to the notice of his superiors his wife's involvement jn the running of the brothel until after the rejection of his application for a redundancy package. At that time, his wife had been engaged in running the brothel for some seven months. The defendant was of the belief, after informing his superiors of his wife's involvement in the brothel, that his appointment would be terminated under Section 26E. Termination under that Section would result in substantial financial advantage compared with resignation. The decision that his appointment woutd not be terminated under Section 26E was conveyed to the defendant on 3rd June 1996. The Commissioner's letter of 28th May 1996, in which that advice was contained, said that he would not draw any adverse inferences from his wife's ownership of a legitimate business. The Commissioner also said he could not make the assumption that the defendant had any involvement in the business, nor that his wife's involvment would adversely impact on the defendant's role as a member of the AFP. After first appearing to accept that decision, and discussing his future career, the defendant said he still wanted termination under Section 26E. The letter, the subject of the charge, was written to the Commissioner eight days later. 26. Although it was submitted on behalf of the defendant that he was merely bringing to the Commissioner's attention the fact that he had been spending a "canciderable (sic) amount of time over the past five months at the brothel", in the course of which he had "become familiar" to a "wide range of clientele, these include people from Melbourne's criminal element as well as it's (sic) Judiciary", the letter went further than that. If the letter had concluded at that point, regardless of the truth of the assertions, (and there was no evidence either way as to that), perhaps Mr Burke's submission that the defendant was only informing the Commissioner as to matters of which it was his duty to inform him could be accepted. However, the defendant went on to say "I now find myself in a position that could possibly compromise future AFP operations as_ well as cause embarrassment to the AFP. This could happen if I were to give evidence before a Judge, Magistrate or in the presence of a criminal familiar with my involvement with the brothel. Resulting in a media scandal that would have an adverse impact on the image of the AFP. It is my belief that the media interest would exist only because of my present position". After referring to his inability to resign for financial reasons, the defendant went on to say "Taking into consideration the extra information I have provided you with I believe that it is in the best interests of the AFP and myself for you to reconsider my previous request for a (S)ection 26E package". 27. As Mr Burke pointed out, the defendant was not charged with being involved with the running of the brothel, or with lying to, or misleading the Commisstoner about his involvement, and that, of course, is correct. In the context of the statement by the defendant in his letter that a "media scandal" would follow revelations of his involvement with the brothel, however, it is valid to consider what effect that may have on the public perception of the AFP. As a matter of objective assessment, a media disclosure that a serving Police Officer had been regularly attending a brothel, not during the course of his duty, on "five or six days a week" for "from five minutes to several hours" on each occasion (Exhibit 1), notwithstanding the fact that his wife was a co-proprietor, could be capable of causing public disquiet, even in this day and age. For further disclosures to be made to the public that the same Police Officer, while frequenting the brothel, had contacts with criminals otherwise than in the course of his duty, and knew of members of the Judiciary who were clients of the brothel could, quite conceivably, cause a "media scandal", as predicted by the. defendant. This would undoubtedly result in appreciable embarrassment to, and a diminution in the standing of, the AFP in the community, especially in view of recent revelations at Royal Commissions and other public inquiries. The defendant, in his letter, invited contemplation by the Commissioner of such adverse public exposure if he were not to change his mind and release the defendant from the AFP 28. under the Section 26E determination earlier sought, and, as the defendant believed, promised. Whilst the defendant assured Ms Morrison that he would not disclose such information, he told Ms Morrison that he could not contro) what his wife did. She added that he also said something about a relative who worked for The Australian newspaper. That evidence was not contradicted. Ms Morrison's allegation that the defendant said he would leave the AFP either "dead", or "through oid age", "or with a bucket of money" was also not denied. All this evidence points to the fact that the defendant was impliedly saying to the Commissioner : "You had better reconsider your decision not to let me out under Section 26E, or the AFP will suffer adverse publicity because of what I have told you. In other words, it would be better for me to be an ex~AFP member, under Section 26E, than a serving member, in the circumstances, so you should now give me the benefit of a release under Section 26E". In my view, that was not an appropriate method of attempting to influence the Commissioner to reconsider his' earlier decision about Section 26£: it was more in the way of an unsubtle attempt to intimidate and improperty influence the Commissioner's decision by the threat of adverse publicity being visited upon his Force. That the attempt, which could best be described as inept, did not succeed, is inconsequential. The inescapable facts are that the defendant, having, in his view, wrongly been deprived of a hoped-for financial advantage, sought, by inappropriate means, i.e., attempted intimidation, toa coerce the Commissioner into changing his mind. 29. In Sloane's case, No 10 of 1984, the then-Deputy President of the Tribunal, Mr Justice Jenkinson, characterized the offence of conduct undeacoming an AFP appointee as embracing the offence of improper conduct. In the case of O'Connell, (1994 Vol 76 ACR at 140), the Federal Court, on appeal From the Tribunal, considered the elements of improper conduct, indicating that improper conduct was synonomous with conduct unbecoming an AFP appointee. The difficulties involved with creating offences which overlap in this manner were highlighted by Mr Justice Fox in Scanes and Fleming v Wilson (1974 Vol 22 FLR 262 at 272). His Honour there dealt with an appeal from the ACT Police Appeal Board against findings involving breaches of Section 29 of the ACT Police (Disciplinary Provisions) Ordinance 1972. The provisions of Regulation 18 are in almost identical terms to that Section. His Honour observed as follows "As the Board pointed out, the offences set out in Section 29 are a rather incongruous group. Some are very specific, others are very vague and very general, and the latter overlap the former. The Board criticized the generality and vagueness of the offence in paragraph (g), and it seems to me that attention should be given to that criticism. Certainly the present scheme of offences seems likely to produce embarrassment 30. and difficulties both for the Commissioner and for those charged". As stated by Mr Justice Jenkinson in Sloane's case, .it Is for the Tribunal to judge whether the conduct alleged constitutes "acting in a manner unbecoming a member of the Australian Federal Police". The standard of proof to be applied is proof on the valance of probabilities. To attempt to influence the Commissioner by a none-too-~ subtle threat of a "media scandal" to change his mind about the application of Section 26£, so that the defendant could receive the financial benefits of termination of his service under that Section, clearly constitutes acting in a manner unbecoming an AFP appointee. On the balance of probabilities, I find the offence under Regulation 18(1)(e) proved. The alternative charge, of improper conduct, under Regulation 18(1)(d), being essentially duplicitous, is formally dismissed. (J. UDATNER) MEMBER.