DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
Betts v Chief of Army [2018] ADFDAT 2
Appeal from: Defence Force Magistrate File number: DFDAT 2 of 2017 Members: TRACEY (PRESIDENT), BRERETON AND GARDE (MEMBERS) JJ Date of Decision: 10 July 2018 Catchwords: DEFENCE AND WAR – appeal from a decision of a Defence Force Magistrate (“DFM”) – where the appellant was found guilty of four counts of obtaining a financial advantage contrary to s 61(3) of the Defence Force Discipline Act 1982 (Cth) and s 135.2(1) of the Criminal Code (Cth) by way of an overpayment of rental allowance, knowing or believing that he was not eligible to receive that advantage – where the appellant failed to advise Defence Housing Australia in accordance with cl 1.5.2(4) of the Defence Determination 2005/15 that he was subletting his residence to his friend – whether the DFM erred in ruling that cl 1.5.2(4) imposed a legal duty on the appellant such that failure to perform that duty constituted conduct by omission for the purposes of ss 4.3 and 135.2(1) of the Criminal Code (Cth) – whether the DFM erred in refusing the appellant’s application to amend the charge sheet to avoid a multiplicity of charges – whether the DFM erred in finding that the appellant was subletting his residence and that he was therefore required to report that circumstance – whether the DFM erred by amending the charge sheet so that it read “subletting” rather than “sharing” – whether a reasonable doubt existed as to the appellant’s knowledge or belief that he was not eligible to receive the relevant amount of rental allowance
STATUTORY INTERPRETATION – meaning of “sub‑letting” in Ch 7 of Defence Determination 2005/15
Legislation: Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) Sch 1 item 1
Criminal Code (Cth) ss 4.1, 4.2, 4.2(1), 4.2(4), 4.3, 4.3(b), 5.3, 135.2(1), 135.2(1A)
Defence Act 1903 (Cth) ss 58B, 58E
Defence Force Discipline Act 1982 (Cth) s 61(3)
Defence Force Discipline Appeals Act 1955 (Cth) ss 20(1), 23(2), 23(1)(a), 23(1)(b), 23(1)(c), 23(1)(d)
Defence Determination 2005/15 cls 1.5.1-1.5.4, 1.5.6, 1.5.2(4), 1.5.2(5), 7.1.2, 7.1.3(1), 7.6.2, 7.6.3, 7.6.19, 7.6.21, 7.6.21(3)
Defence Determination 2005/52
Defence Determination 2016/19 (Conditions of Service)
Cases cited: Baker v Chief of Army [2017] ADFDAT 3
Beckwith v The Queen (1976) 135 CLR 569
Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210
Director of Public Prosecutions (DPP) (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43
Herbert v Chief of Air Force [2018] ADFDAT 1
Junghenn v Wood (1958) SR(NSW) 327
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184
Low v Chief of Navy [2011] ADFDAT 3
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mickelberg v The Queen (1989) 167 CLR 259
R v Bryer (1994) 75 A Crim R 456
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- Case
- [2018] ADFDAT 2
- Decision Date
CaseChat Overview and Summary
The court considered the interpretation of the Defence Determination 2005/15, specifically clause 1.5.2(4), which required the reporting of subletting to Defence Housing Australia. The court found that the DFM correctly interpreted the clause as imposing a legal duty on Betts. The omission to report the subletting was deemed conduct by omission, fulfilling the requirements of the Criminal Code. The court also held that the DFM did not err in refusing to amend the charge sheet as the proposed amendment would have mischaracterised the nature of the offence. Furthermore, the court concluded that there was no reasonable doubt that Betts knew or believed he was not eligible to receive the rental allowance, thereby confirming the DFM’s findings on this point.
In light of the above, the appeal was dismissed. The findings of the DFM were upheld, and the appellant’s convictions were affirmed. The court did not find any merit in Betts’ arguments concerning the interpretation of the Defence Determination, the refusal to amend the charge sheet, or the characterisation of the offence. The court's decision underscores the importance of compliance with Defence regulations regarding rental allowances and subletting arrangements.
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