Chapman v Chief of Army - [2008] ADFDAT 3

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Chapman v Chief of Army [2008] ADFDAT 3

DEFENCE – appeal against convictions for forgery and use of forged documents – alleged misapplication of onus of proof – Australian Defence Force members as “public officials” performing a “public duty or function” – whether convictions unsafe and unsatisfactory – whether mistake of fact or claim of right

Defence Force Discipline Act 1982 (Cth) s 61(3)
Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(a)
Criminal Code (Cth) ss 9.1, 9.5(2), 144.1(1), 145.1(1)

Chamberlain v The Queen (No 2) (1984) 153 CLR 521 cited
E (1995) 89 A Crim R 325 cited
M v The Queen (1994) 181 CLR 487 cited
Murray v The Queen (2002) 211 CLR 193 cited
R v Trimboli (1979) 21 SASR 577 cited
Shepherd v The Queen (No 5) (1990) 170 CLR 573 cited
Van Damme v Chief of Army [2002] ADFDAT 2 cited

CHRISTOPHER CHAPMAN v CHIEF OF ARMY

DFDAT 3 OF 2008

HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS)
28 JULY 2008
MELBOURNE

BEFORE THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 3 OF 2008

ON APPEAL FROM A DEFENCE FORCE MAGISTRATE

BETWEEN:

CHRISTOPHER CHAPMAN
Appellant

AND:

CHIEF OF ARMY
Respondent

TRIBUNAL:

HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS)

DATE OF ORDER:

28 JULY 2008

WHERE MADE:

MELBOURNE

THE TRIBUNAL ORDERS THAT:

Insofar as leave is necessary, leave to appeal is granted.
The appeal is dismissed.

BEFORE THE DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DFDAT 3 OF 2008

ON APPEAL FROM A DEFENCE FORCE MAGISTRATE

BETWEEN:

CHRISTOPHER CHAPMAN
Appellant

AND:

CHIEF OF ARMY
Respondent

TRIBUNAL:

HEEREY J (PRESIDENT), MILDREN AND DUGGAN JJ (MEMBERS)

DATE:

28 JULY 2008

PLACE:

MELBOURNE

REASONS FOR DECISION

THE TRIBUNAL:

The appellant Private Christopher Chapman appeals against convictions by a Defence Force Magistrate on one charge of forgery (Defence Force Discipline Act 1982 (Cth) s 61(3), Criminal Code (Cth) s 144.1(1)) and three charges of using a forged document (DFDA s 61(3), Code s 145.1(1)).

The prosecution case

The prosecution case was as follows. In 2004 the appellant had been serving with 5/7 Battalion Royal Australian Regiment in Darwin. In January 2005 he was posted to the Deployed Forces Cash Office in Brisbane. On 31 January 2005 the appellant completed an Application to Live In, Live Out and Categorisation form (Exhibit 10). He signed the form and submitted it to the Orderly Room Clerk at DFCO, Pte (now Cpl) Shelley Cuthbert. At the time the appellant signed the form there was written on it, under the printed words “My reasons for applying are:”
I am a single mbr [sic] who has been in the Army for yrs & wish to live out.
Pte Cuthbert submitted the form through the chain of command at DFCO and it reached the Officer Commanding, Maj (now Lt Col) Maree Zanatta. On 8 February Maj Zanatta, having made a decision to categorise the appellant as Member Without Dependants, signed the form in the space for the approval of the Officer…

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: [2008] ADFDAT 3
Decision Date: 28 JULY 2008

CaseChat Overview and Summary

The appellant, Private Christopher Chapman, appeals against his convictions for forgery and use of forged documents by the Defence Force Magistrate. The appeal is heard by the Defence Force Discipline Appeal Tribunal (DFDAT) which comprises HEEREY J (PRESIDENT), MILDREN and DUGGAN JJ (MEMBERS). The appellant's counsel argues four grounds for appeal: first, the learned Magistrate misapplied the onus of proof; second, the prosecution failed to prove an essential element of the charges; third, the convictions were unsafe and unsatisfactory; and fourth, the prosecution did not exclude the defences of mistake of fact and claim of right.

The Tribunal rejects the first ground of appeal, finding that the learned Magistrate correctly applied the onus of proof and did not simply choose between the prosecution and defence versions of events. The Tribunal finds that the learned Magistrate was conscious of the requirement to prove the charges beyond reasonable doubt and did not base his findings solely on accepting the prosecution evidence over the appellant's version.

The Tribunal also rejects the second ground of appeal, holding that the prosecution proved the essential element of inducing a public official. The Tribunal finds that the individuals involved in the charges were acting in their capacity as public officials and exercising a public duty or function. The Tribunal further holds that there is no requirement for financial detriment in the third alternative of section 144.1(a)(ii) of the Criminal Code.

The Tribunal dismisses the third ground of appeal, concluding that the convictions were safe and satisfactory. The Tribunal finds that there was sufficient evidence to support the verdicts of guilty and that the appellant's arguments did not lead to a significant possibility that an innocent person has been convicted.

Lastly, the Tribunal rejects the fourth ground of appeal, stating that the appellant did not assert that he engaged in the conduct as a result of some mistake or in the exercise of some right which he believed to exist.

In conclusion, the Tribunal grants leave to appeal insofar as necessary and dismisses the appeal. The convictions of the appellant are upheld.

Orders