Betts v Chief of Army - [2018] ADFDAT 2

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 Bo [2014] ACTSC 287

R v Bryer (1994) 75 A Crim R 456

SKA v R (2011) 243 CLR 400; [2011] HCA 13

Yewsang v Chief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ADFDAT 2
Decision Date: 10 July 2018

CaseChat Overview and Summary

The case of Betts v Chief of Army involved an appeal against a decision of a Defence Force Magistrate (DFM) who found the appellant guilty of four counts of obtaining a financial advantage by way of an overpayment of rental allowance. The appellant, Betts, argued that he was not eligible to receive the rental allowance as he had sublet his residence to a friend without notifying Defence Housing Australia as required by the Defence Determination 2005/15. The central legal issues were whether the DFM correctly interpreted the Defence Determination to impose a legal duty on Betts to report his subletting and whether this omission constituted conduct for the purposes of the Criminal Code. Additionally, the court examined whether the DFM erred in refusing Betts’ application to amend the charge sheet and in amending the charge from "sharing" to "subletting".

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.

Orders